H.E. NO. 80-35

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-78-13-57

CAPE MAY CITY EDUCATION ASSOCIATION

and CHARLES MC CARTY,

Charging Party.

Appearances:

For the Respondent

Martin R. Pachman, Esq.

For the Charging Party

Greenberg and Mellk, Esqs.

(William Greenberg, Esq.)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

On July 21, 1977, the Cape May Education Association and Charles McCarty filed an Unfair Practice Charge with the Public Employment Relations Commission (Commission) alleging that the Cape May City Board of Education (Board) had 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. Administrative Principal John Demarest evaluated a teacher, Charles McCarty, four times during the 1976-1977 academic year. The Association alleges that these evaluations were negative in nature and were motivated by a desire to discipline McCarty because of his advocate position as Chairman of the Negotiations Committee of the Cape May City Education Association "in violation of N.J.S.A. 34:13A-5.4(a)(1), (3) and (4).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 February 6, 1978. Hearings were held on April 14, April 19, April 20, May 17, May 18, May 19, October 23, October 25 and November 14, 1978. Both parties were given full opportunity to examine witnesses, present evidence and to argue orally. Both parties filed briefs by June 11, 1979.

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

Findings of Fact

I. The Parties

The Board operates a school district located in the City of Cape May comprising of grades K through 6. For some years, the Association has been the exclusive representative for collective negotiations concerning the terms and conditions of employment of the certified teachers employed by the Board. Over the years, the parties have negotiated and entered successive collective agreements covering these employees. 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. Charles McCarty is a teacher in the school district. He first came to the district in September 1970 and has taught fourth grade since 1972.

II. The Unfair Practice

The Evidence

McCarty has been an officer in the Association since 1972, when he became Vice-President. He served as President of the Association from 1974 to 1976. In 1972-1973 he was chairman of the Professional Rights and Responsibilities Committee (in this position McCarty served as Association representative in the grievance process). From January to May 1976 McCarty served as the acting negotiations chairman. (He acted in place of the regular chairman, George Loper.) In September of 1976 McCarty became the regular Negotiations Chairman.

Negotiations between the Board and the Association for a two-year contract covering 1976-1977 and 1977-1978 began in the spring of 1976. Agreement was reached late in January 1977. On October 28, 1976, McCarty, on behalf of the Association sent a letter (A-2 in evidence) to John Daly, the chief negotiator for the Board, accusing the Board of arrogance, of "deliberate harassment" in negotiation, of "being unfair and incorrigible," and of making a "sham of the negotiations process by threats and innuendos" etc. The letter concluded "We hope that negotiations...can be culminated...without our filing additional unfair labor practices against the Board." When this letter was discussed at a Board meeting, a board member Mildred Blomkvest said that she thought the letter was disgusting and objected that the language of the letter was too curt to be coming from an employee to his employer. On November 29, 1976, John Demarest (the administrative principal who served on the Board's negotiating committee2/) issued the first of his four negative evaluations of McCarty (see Attachment I) issued that year. In the three preceding years McCarty was evaluated only once per year. At the end of the school year the Board, at Demarest's recommendation, voted to withhold McCarty's increment. McCarty appealed to the Board and the Board reversed its action and granted the increment. The Association argues that Demarest issued these poor evaluations because of his anti-Association animus and his hostility toward McCarty which grew out of McCarty's exercise of protected rights.

Antagonism between the two men date back to the spring of 1973 when Demarest recommended to the Board that they deny tenure to McCarty. At that time the Board did not follow Demarest's recommendation and granted McCarty tenure. The Association argued that Demarest acted on the basis of his animus that dated from 1973. At that time McCarty was chairman of the PR&R committee and he successfully represented four teachers in the grievance process when they challenged Demarest's evaluations of those four teachers. In January of 1973, the Board ordered certain comments removed from these evaluations. In February 1973 Demarest resigned but was persuaded by the Board to return and in March of 1973 Demarest made his recommendation to not grant tenure to McCarty. It is claimed that Demarest's action in 1973 was an attempt to get back at McCarty for representing the four teachers in their grievance. However, a careful analysis of McCarty's evaluations during this period does not bear this contention out. The Respondent correctly points out that certain teaching traits that Demarest did not approve of in 1976-1977 were already apparent in McCarty's early evaluation. These included his strict discipline, lack of support for individual needs, and an "attitudenal conflict."

In McCarty's evaluation of February 15, 1973 (which was just after McCarty successfully represented the four teachers) Demarest rates McCarty as average or above in all areas and states, "We continue to be pleased by this teacher's progress. We are very optimistic about his future."

His first poor evaluations came two weeks later on March 2, 1973. A number of parents expressed concern to Board members about McCarty's harsh discipline. Demarest wanted McCarty to meet with the parents and discuss their concerns. McCarty stated he would meet with them only if a representative of the New Jersey Education Association was present. Demarest would not agree to such a meeting. He wanted McCarty to meet with the parents by himself. It was this incident which precipitated Demarest's change in his opinion of McCarty and not McCarty's activities on behalf of the Association.3/ For the next three years McCarty received favorable evaluations from Demarest, although it was at this time that McCarty became President of the Association.

By November of 1976 the old antagonisms had flared up and there were a number of incidents which caused friction between the two. Some of them were inconsequential, i.e., a routing slip was posted on the bulletin board concerning evaluations; it was to be signed by all teachers. McCarty signed it and wrote, "read notice only." Some of the incidents were significant. On October 21, 1976, parents were in attendance at a PTA meeting, but McCarty walked out on them.4/ Also McCarty was involved in an incident with a fellow teacher, Kathleen Bogel. On November 1st McCarty was on duty in the school cafeteria. Bogel had the habit of eating lunch in the cafeteria with the students. While she was seated, a student left the food line to go and talk to Bogel. McCarty ordered the student back in line. A short time later another child approached Bogel. Mccarty began shouting at Bogel in front of the children in the cafeteria. "If you are going to eat in the cafeteria you're going to be treated like one of the kids in the cafeteria" and he began waving his clip board at Bogel. That same day McCarty filed a Behavioral Problem Form (which was used in the cafeteria for pupils) and submitted it with Bogel's name on it. Bogel told Demarest of her run-in with McCarty. Also during this time, Mrs. Blomkvest and several other Board members had received complaints from parents of four of McCarty's students regarding his overbearing conduct with some of their children and of McCarty's telling lurid stories in class.5/

Further, Bogel complained to Demarest that McCarty was not releasing students to go to the remedial math course which she taught. Demarest complained to Blomkvest that since the Board refused to go along with his recommendation as to tenure he was powerless as to McCarty. Blomkvest responded that if he was more specific in this evaluation then the Board might be able to take action. It is reasonable, under the circumstances, for Demarest to have evaluated McCarty on November 29th as he did. It is important to note that evidence of antagonism between Demarest and McCarty in negotiations was minimal. Demarest accused McCarty of impeding negotiations, and the letter of October 28, 1976, did not go to Demarest, it went to John Daly, a board member. But it was the Board that voted to reinstate McCarty's increment.

Before leaving the November 29 evaluation two other things are worth noting. First, the evaluation mentioned an R2R or Right to Read program. Two outside lecturers came to give a talk about the program. McCarty and his fellow teachers promptly left the meeting at 3 o'clock without any advance notice in the middle of the lecture.6/ Under the contract the teachers have a right to leave but Demarest's comments are ambiguous. They could refer to the manner in which the teachers left caused embarrassment or they could refer to the exercise of contractual rights. Second, McCarty claimed that the notification in the evaluation that he will attend in I4L or Interning for Learning program7/ was sudden and without foundation is not supported by the evidence. In McCarty's May 9, 1974, evaluation it was suggested that McCarty attend this program. By the time of this instant evaluation McCarty was the only staff member in grades K through 4 who had not participated in the I4L program. All other teachers had volunteered for this workshop.

A document known as the "Teacher Evaluation Analysis" gives teachers the right to "react verbally to a grievance." McCarty responded to the evaluation by submitting a letter in which he stated, "I hereby expect a specific explanation and clarification in writing from you of the question below" and thereafter listed twelve questions regarding the comments on the evaluation. Demarest refused to comply with McCarty's letter, stating that he would abide by the contract and the Teacher Evaluation Analysis Document and declined to respond to McCarty's demands. McCarty then responded with a nine-page rebuttal in which he states an immediate reply is expected to the earlier memo. In the rebuttal McCarty accuses Demarest of anti-union animus and alleges that the poor evaluation was motivated by said animus.

On December 22, the day that McCarty submitted the rebuttal, McCarty entered the general office of the school and ran off copies of his rebuttal. Demarest was about to use the Xerox machine. When he saw McCarty he challenged McCarty's personal use of the Xerox machine. McCarty claimed he had a right to use the machine for Association business under the collective negotiations agreement and refused to stop. The following day Demarest placed a notice on the bulletin board that "A teacher in our school continues to interfere with the normal operation of our school office by his persistent misuse of Board of Education property and loitering in the office. The administrator noticed, again on December 22, 1976, as we prepared to use the Xerox machine the teacher running off reams of paper for his own personal use without proper notification. In the future no one will use the Xerox machine without the administrator's authorization that the equipment is not in use." The notice went on to state, "There will be a 10 cent a sheet assessment for each copy." The Association maintains this notice constituted unlawful harassment, but the contract provides in Article 5, Association Rights and Privileges, that the Association may use such equipment "at reasonable times when such equipment is not otherwise in use, upon notification. The Association shall pay for the reasonable cost of all materials and supplies incidental to such use." Given the circumstances of Demarest's confrontation with McCarty the day before and the clear language of the contract, Demarest was well within his rights and no unlawful motive can be imputed in Demarest's conduct.

Immediately after the Christmas recess, Demarest released a memo to John Mathis, the President of the Association, with copies to all teachers in which Demarest reviewed Article 5, the Association Rights and Privileges section of that contract, and reviewed how teachers were not complying with the provision that required prior approval for use of school equipment as well as mail boxes and the bulletin board. The memo also stated the provision concerning Teacher Evaluation, Sick Leave and Personal Leave were not being adhered to. Demarest stated that the contract provision would be strictly enforced. The Association claims that this was done to put pressure on the Association to settle the outstanding contract dispute. Demarest testified that the confrontation with McCarty over the Xerox machine triggered the notice. Given the timing of the incident I find Demarest's testimony credible and do not find the notice to be violative of the Act.

Also, on this same date, Demarest evaluated McCarty. Once again Demarest commented in the evaluation that McCarty had attitude problems. The evaluation stated that "There continues to be a need for this teacher to cooperate with other teachers in reaching agreeable behavior patterns outside the classroom." As to the latter statement, Demarest testified that McCarty has had run-ins with Bogel, as discussed above, as well as other teachers including Levin.8/ The undersigned is satisfied that McCarty did have problems with some teachers. It is obvious that the "attitude problem" referred to the incident with the copy machine on December 22. It is also evident that this second evaluation was motivated by Demarest's anger over this incident.

On January 28, 1977, Bogel called Demarest at home. Bogel had found a note stuck in her door stating, "I shot you at 9:00 o'clock." The note was written on the back of a photostatic copy of a letter to Demarest that Bogel had prepared about the cafeteria incident. Bogel had kept this same copy in her desk at school. Both Bogel and Demarest testified they believed that McCarty was responsible for the note and they called the police. Although there is no direct evidence linking McCarty with the threat, I see no reason to discount Demarest's testimony as to this belief that McCarty was responsible.

On February 10, 1977, McCarty filed a written rebuttal to the January 3, 1977, evaluation. In a cover letter McCarty states, "The fact that you have refused to answer, in writing or orally to me and my representative the question that I posed (in the earlier) memo, demonstrate its lack of validity." The letter concludes, "This rebuttal does not preclude any other action that I or my legal adviser deem necessary, concerning the evaluation of 1-3-77."

In the rebuttal McCarty accuses Demarest of harassment and intimidation and of making inferences and allegations without substance. He states that Demarest's attitude toward him has not changed since 1973. He claims that the evaluation consists of "unprofessional, unfounded and bias(sic) opinions," that the evaluations are "a true expression of the unfounded, harassing, unprofessional attitudes by the administrator towards myself and the evaluations are his 'opinion' - not fact." The letter accuses Demarest of refusal to answer questions. In his testimony McCarty also accused Demarest of not offering assistance, although McCarty never asked the people to whom Demarest directed him for help and instead demanded that the Superintendent perform a lesson for him. McCarty challenged almost every comment, good or bad, in the evaluation and questioned the ability, qualifications and expertise of the evaluator.

In a companion case to this one, In re Cape May City Board of Education, P.E.R.C. 80-31, 6 NJPER ___ at (1979), the Commission adopted a Hearing Examiner's finding of fact wherein it was found, during an evaluation meeting with two non-tenured teachers, that on February 13 Demarest questioned them about their loyalty. Demarest stated, "I don't want any more Charlie McCarties." The Hearing Examiner found, at footnote 38, this statement was ambiguous. "It could reflect Demarest's discomfort at having the Board supersede his tenure recommendation, or it could refer to McCarty's activism in the union." The report went on to say, "One may infer animosity toward McCarty from the record, but not animus." Such animosity is visible in all of Demarest's evaluations. The Board has demonstrated ample reasons for this animosity independent of animus.

Then on February 17, Demarest again observed McCarty and issued a third report. The overall comments of Demarest concerning McCarty's's teaching ability and relationship with his students were uniformly positive. But once again Demarest was critical of McCarty's "attitude." He states, at point 2 of the evaluation,

Unfortunately, we see no improvement of attitude. We believe that free speech and rights do not endow a teacher as a school district employee, with a license to vilify his superior publicly or in writing. The employer-employee relationship restrains the right of the employee to the extent reasonably necessary to retain the harmony and loyalty which is necessary to the efficient and successful operation of the education system.

It is individuality that each teacher brings to the educational scheme that contributes to educational success. That individuality, however, must be sublimated to the educational good. A teacher is expected to maintain a civility commensurate with his or her professional status. A reading of this teacher's rebuttal of the administrator himself rather than the teacher's evaluation tends to show that he has failed to meet even the minimum professional standards expected of him.

A course of action of continued harassment, unprofessional conduct and intimidation of the administrator shall cease immediately.

McCarty had a right to "react in writing to an evaluation" pursuant to the "Teacher Evaluations Analysis."9/ Although this document is separate from the collective negotiations agreement and there is some confusion as to its origins, the lead paragraph of the document provides it is an "agreement of the teachers, Board and administration." Further, the document makes specific reference to the Association. Accordingly I find it constitutes part of the collective negotiations agreement, and McCarty in preparing the rebuttal was exercising his contractual right. In North Brunswick Twp. Board of Education, P.E.R.C. No. 79-14, 4 NJPER 451 (¶4205, 1978) at footnote 16 the Commission held "individual employee conduct, whether in the nature of complaints, arguments, objections, letters or other similar activity relating to enforcing a collective negotiations agreement or existing working conditions of employees in a recognized...unit, constitute protected activities under our Act." See, Dreir v. Krump Mfg. Co., 545 F.2d 320, 93 LRRM 2739 (7th Cir. 1976) and NLRB v. Interboro Contractors Inc., 388 F.2d 455, 67 LRRM 2083 (2nd Cir. 1967).

Accordingly, the filing of the rebuttal here constituted the exercise of protected rights. There is no absolute right to exercise such rights. "Any employee may not act with impunity even though he is engaged in protected activity. An employee's rights under the Act must be balanced against the employer's right to maintain order in its operation by punishing acts of insubordination." Crown Central Petroleum Corp. v. NLRB, 430 F.2d 724, 74 LRRM 2855 (7th Cir. 1965). Hamilton Township Board of Education, P.E.R.C. No. 79-59, 5 NJPER 115 (¶10068, 1979).

McCarty was responding to the clear animosity that Demarest exhibited against him and he was questioning whether Demarest was capable of performing evaluations in an objective manner. The language used by McCarty was strong, but it was understandable. He had no right to demand that Demarest respond to the question he had posed but there was nothing genuinely humiliating or opprobrious in McCarty's rebuttal. He did not lose the protection of the Act when he submitted this rebuttal to Demarest. It follows that when Demarest included his criticism of the rebuttal in the February 17 evaluation, he interfered with and restrained McCarty's exercise of protected rights and violated §5.4(a)(1) of the Act. In effect, Demarest was disciplining McCarty for the exercise of protected rights.

McCarty had grieved each of the evaluations in the 1976-1977 school year. On February 28, 1977, McCarty's grievance of the November 1976 evaluation proceeded to Level 3 of the procedure: hearing before the Board. At that meeting, Demarest recommended to the Board that they withhold McCarty's increment. Demarest made his recommendation on the basis of three factors--
cooperation and conduct, which were discussed above, and health. McCarty had exceeded his allotted 10 sick days by one in 1973-
1974 and by six in 1975-1976. Again the undersigned finds that the Association has not proven that Demarest was motivated by animus in making his recommendation for as discussed above the Respondent demonstrated how unprotected acts engendered Demarest's animosity.

On April 1, 1977, Demarest conducted his fourth evaluation of McCarty. This evaluation was also favorable as to McCarty's teaching ability but again attacked McCarty's attitude, stating it has grown progressively worse.

He refuses to accept that he is a public employee, holding a position of public trust. His students have learned not only what this teacher has taught, but what they see, hear and experience about this teacher in the cafeteria and in the halls. A teacher is expected to maintain a civility commensurate with his or her professional status, but instead he has set out to harass and intimidate the administrator and other teachers by using Board members, N.J.E.A., County Education Association members and local Education Association members while threatening the administration with legal actions.

The above language in this evaluation is violative of the Act.

Simply because an action is taken in the name of a majority representative does not mean that said actions are protected by the Act. If indeed the Association or its affiliates named by Demarest did harass and intimidate him, then such a comment might not be violative of the Act. The only evidence adduced to show that the Association and its affiliates attempted to harass and intimidate Demarest was that the County Education Association wrote letters in support of McCarty to the Board of Education. Yet the activity complained of is clearly protected, North Brunswick, supra, and giving an employee a poor evaluation because he exercised protected rights is discriminatory. Hence, to include comments of Association activity in McCarty's evaluation was discrimination with the intent to discourage the exercise of protected rights in violation of §5.4(a)(3) of the Act.

The evidence satisfies the undersigned that the exercise of protected rights was not one of the motivating factors in McCarty's earlier poor evaluation however. In re Haddonfield, P.E.R.C. No. 77-36, 3 NJPER 71 (1977).

See also the Commission decision in Cape May, supra, wherein Demarest recommended a teacher for tenure who he knew was "loyal to the Association" yet recommended the non-renewal of two teachers who Demarest did not believe were loyal to the Association. The Association also argues that the poor relation with fellow teachers that Demarest criticized McCarty for was in reality a split in the Association that was an internal Association matter and should be of no concern of Demarest. The evidence does not so indicate. McCarty's poor relationship with Bogel and Levin--who were part of the group that split within the Association--had nothing to do with the Association in any legitimate way. Witness the note that Bogel found in the door that she perceived to be a threat on her life by McCarty.

Conclusion of Law

1)	By including in its February 17 evaluation Demarest's adverse criticism of McCarty's rebuttal which under the circumstances was a protected activity, the Respondent engaged in a course of conduct constituting an unfair practice within the meaning of N.J.S.A. 34:13A-5.4(a)(1).

2)	By including in the April 1 evaluation references to protected activity of the Association and its affiliates the Respondent engaged in a course of conduct constituting an unfair practice within the meaning of N.J.S.A. 34:13A-5.4(3) and derivatively §5.4(a)(1).

3)	There being no evidence at the hearing regarding a violation of N.J.S.A. 13A:5.4(a)(4), this section of the Complaint should be dismissed.

Recommended Order

Respondent, its officers, agents, successors or assigns shall:

1.	Cease and desist from interfering with, restraining or coercing any employees in the exercise of the rights guaranteed to them by the Act by evaluating employees on the basis of rebuttals submitted by an employee.

2.	Cease and desist from discriminating against its employees in order to discourage the exercise of protected rights by including in evaluations negative comments about the majority representative writing letters on behalf of the Respondent's employees.

3.	Take the following affirmative action which is deemed necessary to effectuate the policies of the Act.

a)	Remove from Charles McCarty's evaluation of February 17 the following language:

Unfortunately, we see no improvement of attitude. We believe that free speech and rights do not endow a teacher as a school district employee, with a license to vilify his superior publicly or in writing. The employer-employee relationship restrains the right to the employee to the extent reasonably necessary to retain the harmony and loyalty which is necessary to the efficient and successful operation of the education system.

It is individuality that each teacher brings to the educational scheme that contributes to educational success. That individuality, however, must be sublimated to the educational good. A teacher is expected to maintain a civility commensurate with his or her professional status. A reading of this teacher's rebuttal of the administrator himself rather than the teacher's evaluation tends to show that he has failed to meet even the minimum professional standards expected of him.

A course of action of continued harassment, unprofessional conduct and intimidation of the administrator shall cease immediately.

b)	Remove from the evaluation of Charles McCarty of

April the following language:

He refuses to accept that he is a public employee, holding a position of public trust. His students have learned not only what this teacher has taught but what they see, hear and experience about this teacher in the cafeteria and in the halls. A teacher is expected to maintain a civility commensurate with his or her professional status, but instead he has set out to harass and intimidate the administrator and other teachers by using Board members, N.J.E.A., County Education Association members while threatening the administration with legal actions.

c)	Post at its central offices in the School District of Cape May City, New Jersey, copies of the attached notice marked "Attachment II." Copies of said notice on forms to be provided by the Commission, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof, and maintained by it for a period of at least sixty (60) consecutive days thereafter on conspicuous places including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by said Respondent to ensure that such notices are not altered, defaced or covered by any other material.

d)	Notify the Commission, in writing, within twenty (20) days of receipt of the Order of the steps the said Respondent has taken to comply herewith.

4.	IT IS FURTHER ORDERED that the particular sections of the Complaint which allege that the Cape May City Board of Education engaged in violations arising under N.J.S.A. 34:13A-
5.4(a)(4) be dismissed.

_________________________

Edmund G. Gerber

Hearing Examiner

DATED:	March 19, 1989

Trenton, New Jersey