H.E. NO. 88-62

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

HOPATCONG BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CO-H-88-133

HOPATCONG EDUCATION ASSOCIATION,

Charging Party.

Appearances:

For the Respondent, Rand, Algeier, Tosti, Woodruff & Frieze, Esqs. (Robert M. Tosti, of counsel and on the brief; Ellen S. Bass, on the brief)

For the Charging Party, Bucceri & Pincus, Esqs. (Sheldon H. Pincus, of counsel; Gregory T. Syrek, on the brief)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

On November 19, 1987, the Hopatcong Education Association ("Association") filed an unfair practice charge against the Hopatcong Board of Education ("Board"). The charge alleges the Board violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., specifically subsections 5.4(a)(1) and (3),1/ when it disciplined the Association's president for

1/	These subsections prohibit public employers, their representatives or agents from: "(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."

directing staff members to return to the Board's superintendent, letters he sent them about contract negotiations.

On December 21, 1987, a Complaint and Notice of Hearing issued.

On January 14, 1988, the Board filed its Answer claiming the president caused the removal of the superintendent's letter and other bona fide school related documents from teachers' mailboxes before they received them. Accordingly, the Board claims the reprimand was proper and warranted. It denies any anti-union animus.

On February 23 and 24, 1988, I conducted a hearing. The parties waived oral argument, but filed post-hearing briefs by May 11, 1988. On May 13, the Board filed a reply.

Upon the entire record, including my observation of the witnesses, and after consideration of the parties' briefs, I make the following:

FINDINGS OF FACT

1. The Association is the majority representative of the Board's professional employees including teachers. The parties entered into a collective negotiations agreement effective July 1, 1985 through June 1987.

2. Negotiations for a successor agreement began in January 1987. In March 1987, the Board declared an impasse (TA18).

3. On March 12, 1987, the Board's president sent an open letter to the teaching staff about contract negotiations (CP-1).

4. In April 1987, the Association's Representative Council voted that future memoranda from the Board about negotiations should be returned to the author (TA20-TA21).

5.	On June 11, 1987, Superintendent of Schools Wayne L. Threlkeld issued a letter to Association President Barbara Hradil and copied all instructional staff (CP-2). A copy was posted in the teachers' room in the Durban Avenue School where Hradil taught (TA21-TA22). Hradil read the posted letter and went to the school mailboxes where copies of the letter had been placed in each staff member's box. Also in the boxes were a letter to all staff from the assistant superintendent and board secretary about affirmative action grievances (CP-3) and an annual end-of-the-year memorandum from Threlkeld (CP-4). Threlkeld's memorandum included information about contract negotiations. Hradil returned to the teachers' room and telephoned Association building representatives Don Kay at the high school, and Helen Bernstein and Judi Tyminski at the middle school. She left a message for Jean Fivehouse at the Tulsa Trail school (TA23). Hradil told them that an open letter had been addressed to her (CP-2), that they would be receiving copies from Threlkeld, and that she would like them collected and returned in accordance with the Association decision (TA25). The calls were made during Hradil's preparation period.

Hradil collected copies of CP-2 from staff members in her building during lunch and at the end of the day. She put them together with a note stating, "Wayne, these belong to you. Barbara" (R-3) and sent them to Threlkeld via interschool mail (TA26).

Judi Tyminski collected copies of CP-4 from anyone in the Middle School that would give them to her. CP-2 was not distributed in the Middle School until the following day. Tyminski sent the collected memoranda to Threlkeld with a note stating, "These belong to you." (R-3; TB56; TB118).

When Fivehouse returned Hradil's call, Hradil was teaching. Hradil had her class covered, as is the practice for brief telephone calls, and told Fivehouse to collect and return the letters (TB75). The letters had not yet been distributed. When Fivehouse went to the teachers' room five minutes later, someone had a letter, so she returned to the mailboxes and started to remove them (TB75-TB76). She had removed three or four when the secretary, Mrs. Dixon, asked her to stop. Fivehouse returned the letters to the boxes. She then went to the teachers' room and asked staff members to return the letters to her after they had read them (TB76-TB77). She delivered them to Hradil that afternoon (TB78).

6.	The next day, Tyminski was questioned briefly within her school whether she had collected the letters and if she had removed them from mailboxes. She was told "it was a serious matter." Tyminski was not threatened with discipline or accused of any improper conduct (TB58-TB60).

Fivehouse was first questioned by her building principal, Mr. Memoli. He indicated he was very concerned about the incident. Fivehouse told Memoli that she had been told to collect the letters, but had not been told to take them from the mailboxes (TB80-TB81).

Memoli told Fivehouse that he did not think she was in any trouble (TB82).

Fivehouse also met with Threlkeld. He stated that sometimes innocent people get caught in the crossfire and that it was regrettable that it had happened and that she was involved (TB84; TB102). She was not disciplined or threatened with discipline. Fivehouse stated she had made a foolish mistake and would try to correct it. Threlkeld mentioned that it was a negotiating year and that tempers run high and things happen and sometimes people get caught in the middle. He was pleasant.

Threlkeld was particularly concerned about the mailbox incident because, in October 1984, Association grievance materials had been intercepted and photocopied (TB104-TB105; R-1). Regarding Fivehouse, Threlkeld determined that there was an unfortunate series of errors (TB114) and she should not be disciplined. He felt "it was de minimis in the manner in which Fivehouse had removed them and put them back once directed to do so" (TB122).

Hradil was summoned to meet with Threlkeld and Assistant Superintendent James Clark. Threlkeld was extremely angry (TB7-TB8). Hradil was accompanied by a building representative and an N.J.E.A. representative. Threlkeld and Clark said that they felt that the way the letters were sent back was inappropriate and that Hradil was intercepting the superintendent's mail. She was asked to identify the handwriting on the return note (R-3), and told this type of behavior was unacceptable (TA28). Clark asked Hradil if she

made the telephone calls during her prep time (TA29). They also discussed the other returned memoranda (TA33).

7.	On June 17, 1987, Hradil read an Association letter at an open Board meeting. She suggested that teacher morale was low and that the administration and staff should work together and discuss staff reduction. She also noted that it was difficult for her to make the statement because she felt very vulnerable in light of the recent developments (CP-5).

8.	On June 18, 1987, Threlkeld wrote Hradil and reaffirmed his displeasure with her alleged actions (CP-6). He characterized her actions as insubordinate, reprehensible and conduct unbecoming a professional teaching member. He stated her actions placed other staff members in serious jeopardy and may have caused others to believe that it was all right to intercept correspondence. He rejected as "unacceptable" Hradil's claim that she was acting in her role as Association president. He ordered her to cease and desist and stated that a copy of the letter was to be placed in her personnel file.

9.	The handbook at the Middle School describes preparation time as:

1.	ACTIVITIES DURING PREPARATION PERIODS--The preparation period is an opportunity during the school day when the teachers can attend to many matters such as:

a)	Mark papers and do other clerical work

b)	Confer with students and teachers

c)	Use the library

d)	Attend committee meetings

e)	Work with the principal, vice principals, guidance counselors, child study team, etc.

f)	Relax and rest

g)	Cover a class when necessary

h)	Confer with parents (CP-8)

Teachers may leave the building after signing out. They can do personal work, make telephone calls, read, walk outside or go to the bank (TA30).

ANALYSIS

Black Horse Pike Reg. Bd. of Ed., P.E.R.C. No. 82-19, 7 NJPER 502 (¶12223 1981) drew the line separating permissible and impermissible employer criticism of union conduct. The Commission stated:

A public employer is within its rights to comment upon those activities or attitudes of an employee representative which it believes are inconsistent with good labor relations, which includes the effective delivery of governmental services, just as the employee representative has the right to criticize those actions of the employer which it believes are inconsistent with that goal. However, as we have held in the past, ...the employer must be careful to differentiate between the employee's status as the employee representative and the individual's coincidental status as an employee of that employer. See, In re Hamilton Township Board of Education, P.E.R.C. No. 79-59, 5 NJPER 115 (¶10068 1979) and In re City of Hackensack, P.E.R.C. No. 78-30, 4 NJPER 21 (¶14001 1977).

When an employee is engaged in protected activity the employee and the employer are equals advocating respective positions, one is not the subordinate of the other. If either acts in an inappropriate manner or advocates positions which the other finds irresponsible criticism may be appropriate and even legal action, as threatened here, may be initiated to halt or remedy the others action. However, ...where the employee's conduct as a representative is unrelated to his or her performance as an employee, the employer cannot express its dissatisfaction by exercising its power over the individual's employment.

* * *

The Board may criticize employee representatives for their conduct. However, it cannot use its power as employer to convert that criticism into discipline or other adverse action against the individual as an employee when the conduct objected to is unrelated to that individual's performance as an employee. To permit this to occur would be to condone conduct by an employer which would discourage employees from engaging in organizational activity.

The Association was free to engage in protected activity. N.J.S.A. 34:13A-5.3. The Board was free to criticize that activity, but had to do it appropriately.

Negotiations were at impasse. The Association decided to return all negotiations correspondence to the Board. Threlkeld later issued his letters and Hradil implemented the Association's decision by asking the building representatives to collect and return them. Her conduct was neither "offensive" nor "indefensible," as characterized by the Board. Instead, it was a protected component of the Association's collective negotiations strategy. It did not interfere with the Board's educational mission, but merely served to highlight the Association's concerns about negotiations. Contrast Jamesburg Bd. of Ed., P.E.R.C. No. 81-92, 7 NJPER 102 (¶12042 1981)(using pupils to distribute flyers to parents about lack of heat not protected); Manalapan-Englishtown Bd. of Ed., P.E.R.C. No. 78-91, 4 NJPER 262 (¶4134 1979)(using pupils to distribute flyers to parents about labor dispute not protected); see also City of Elizabeth, P.E.R.C. No. 82-100, 8 NJPER 303 (¶13134 1982)(posting misleading information to public that firehouse closed not protected).

Fivehouse erred when she removed some letters from mailboxes, but quickly corrected her error at the secretary's request. Threlkeld characterized Fivehouse's error as "de minimis" and did not discipline her. By contrast, Threlkeld was angry at Hradil, held her accountable for Fivehouse's error, and placed a reprimand in her personnel file.2/

As in Black Horse Pike, the writing of critical letters is not per se inappropriate. However, the Board cannot use its power as employer to convert that criticism into discipline. Any criticism of the Association's activity could have been sent to the Association and even placed in an "Association File." It should not have been put in Hradil's personnel file. That action crossed the line drawn in Black Horse Pike and violated subsections 5.4(a)(1) and (3) of the Act. See also In re Bridgewater Tp., 95 N.J. 235 (1984)(setting the standards for reviewing claims of discrimination because of protected activity).

The Board argues that under Bridgewater, the Association failed to prove that protected activity was a substantial or motivating factor in its decision to discipline Hradil. I disagree. Hradil engaged in protected activity, the Board knew it,

2/	The Board argues that preparation time is not a proper time to conduct Association business. Hradil's reprimand (CP-6) does not focus on the use of preparation time. Instead, it takes issue with her actions which allegedly misled others to believe they could intercept mail. I do not decide the proper uses of preparation time, but note that teachers have been permitted to leave the building, make telephone calls or "rest and relax" (CP-8).

and the Board was hostile to that activity. Id. at 246. The Board has failed to prove, by a preponderance of the evidence, that it would have taken the same action absent Hradil's protected activity. Id. at 242. The argument that the Board disciplined Hradil because she improperly interfered with interoffice mail is pretextual. Hradil never interfered with the mail. She never directed anyone to intercept the letters. Fivehouse only briefly removed the letters from the mailboxes, and she told her principal that she had not been instructed to do so. She was not disciplined. Instead, Threlkeld, angry that his letters had been returned, disciplined Association President Hradil. I find that the Board would not have disciplined her absent her protected activity.

RECOMMENDED ORDER

I recommend that the Hopatcong Board of Education:

A.	Cease and desist from:

1. Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., particularly by placing a reprimand in the personnel file of Hopatcong Education Association President Barbara Hradil criticizing her initiating the collection and return of negotiations-related letters to Superintendent Wayne L. Threlkeld.

2. Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage Barbara Hradil in the exercise of the rights guaranteed

to her by the Act, particularly by placing a reprimand in her personnel file criticizing her initiating the collection and return of negotiations-related letters to Superintendent Wayne L. Threlkeld.

B.	Take the following affirmative action:

1. Remove from Association President Barbara Hradil's personnel file the June 18, 1987 letter of reprimand concerning the return of negotiations-related letters to Superintendent Wayne L. Threlkeld.

2. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix "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 ensure 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.

Ira W. Mintz

Hearing Examiner

Dated: June 16, 1988

Trenton, New Jersey

WE WILL NOT interfere with, restrain or coerce our employees in the exercise of the rights guaranteed to them by the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., particularly by placing a reprimand in the personnel file of Hopatcong Education Association President Barbara Hradil criticizing her initiating the collection and return of negotiations-related letters to Superintendent Wayne L. Threlkeld.

WE WILL NOT discriminate in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage Barbara Hradil in the exercise of the rights guaranteed to her by the Act, particularly by placing a reprimand in her personnel file criticizing her initiating the collection and return of negotiations-related letters to Superintendent Wayne L. Threlkeld.

WE WILL remove from Association President Barbara Hradil's personnel file the June 18, 1987 letter of reprimand concerning the return of negotiations-related letters to Superintendent Wayne L. Threlkeld.