On appeal from Final Decision of the New Jersey Public Employment Relations Commission.
Michels, Petrella and Baime.
[204 NJSuper Page 26] Ocean County College (College) appeals from a decision and order of the Public Employment Relations Commission (PERC)
which found that the College engaged in unfair labor practices in refusing to hire three individuals as instructors under a one-year contract it had to provide educational services for the United States Army at the Fort Dix Army Installation (Fort Dix).
PERC concluded that the College refused to hire Gina Alven, Daily Smith and Effie Clark, three of four charging parties,*fn1 as instructors because of their exercise of rights guaranteed by the New Jersey Employer-Employee Relations Act N.J.S.A. 34:13A-1, et seq. (EERA).
The College argues that: (1) PERC did not have jurisdiction because the charging parties were never public employees and are not public employees under EERA; (2) the charging parties, even if hired, would not have been public employees entitled to collectively bargain under EERA, and (3) PERC erroneously concluded that the College engaged in unfair labor practices in refusing to hire the three charging parties who are respondents on this appeal. With respect to the last issue it argues that there was no evidence upon which PERC could reasonably find that there had been any unfair labor practice involving any of the charging parties. In addition, the College argues that the hearing examiner and PERC, in ordering that three of the charging parties be paid as if they were employees for the term of the College's contract with the Army, erred in failing to require mitigation of damages. All the parties concede that there was error in this regard and that in the event of an affirmance mitigation is required.
The charging parties filed unfair practice charges with PERC on March 18, 1983 in which they alleged that they had not been
hired by the College to fill their former positions as instructors at Fort Dix because they had engaged in attempting to organize a union or engaged in other protected activities. They asserted that the College violated N.J.S.A. 34:13A-5.4a(1) and (3). The matter was eventually tried before a hearing examiner on three separate dates. On the last hearing date, the College advised the hearing examiner and the attorney for the charging parties that the Department of the Army had awarded the contract for instruction at Fort Dix for the next year to another bidder. The charging parties thereafter no longer sought reinstatement, but sought declaratory relief that there had been unfair labor practices and sought compensatory damages.
The hearing examiner issued his decision approximately six months after the last hearing date and concluded that the College violated N.J.S.A. 34:13A-5.4a(1) and (3) of the EERA in refusing to hire Alven, Smith and Clark. He concluded, however, that the College's refusal to hire a fourth charging party, Teresa Corbett, was not a violation. PERC concurred with the hearing examiner's findings and conclusions and ordered the College to cease and desist from discriminating in regard to hiring by refusing to hire job applicants because of exercise of rights guaranteed by the EERA and from interfering with the exercise of such rights. It also ordered the College to pay the charging parties the salaries they would have earned if they had been hired in the College's program as if employed by the College at Fort Dix from October 1, 1982 through September 30, 1983, with interest at 12% added to the amount due on October 1, 1983 to the date of payment. The complaint of Corbett was dismissed. As previously noted, no consideration was given to mitigation of damages, although that is not an issue on this appeal because the parties, as well as counsel for PERC, agree that there was error in that regard. In view of our disposition of this appeal, we need not address this error any further.
Although the charging parties essentially claimed that they were refused employment because of anti-union animus, the
College sharply disputed the claim and had asserted throughout that it or its personnel did not learn of any union organizational attempts of any of the individual charging parties until after the College made the decision not to extend an employment offer to the charging parties. Testimony was presented by the College before the hearing officer that it refused to rehire petitioners for independent reasons and based solely upon the job applications, the demeanor of the individuals at the interviews and reports from fellow employees and supervisors.
Alven and Smith had been instructors in English as a Second Language (ESL) and Clark was a Basic Skills instructor who had been employed for the previous contract term at Fort Dix by Johnson and Wales College (Johnson and Wales), a private institution which had the contract for instruction at Fort Dix just before the College was awarded the contract for one year. Under Johnson and Wales' contract with the United States Army, it was to provide instructional services to personnel on the military base for the period from October 1, 1981 to September 30, 1982. In September 1982 the College was awarded a one-year contract for the period of October 1, 1982 to September 30, 1983.
Prior to any involvement by the College, Alven had contacted a field representative for the New Jersey Education Association (NJEA) with the intent of establishing an NJEA affiliate at Fort Dix. She was given NJEA authorization to act as exclusive representative for collective negotiations with the employer pursuant to N.J.S.A. 34:13A-5.3. Apparently there were some 50 to 55 Johnson and Wales employees at Fort Dix. Alven distributed authorization cards to approximately 30 to 35 of them. By April 1982, thirteen authorization cards had been signed by her colleagues, including Smith, Corbett and Clark.
The charging parties presented testimony that Alven had engaged in additional organizing activities, including holding a meeting in July 1982 which was attended by many of those who had signed authorization cards. She apparently informed those
present that a second meeting would be scheduled for September 29, 1982.
In early September 1982, after the College learned it had been awarded the new contract, it gave responsibility to Dr. John Riismandel, Director of Special Programs, to do the initial work with respect to hiring personnel to run the program. Dean C. B. Cargile, Jr., who was also the affirmative action officer at the College, was responsible for making sure that the hiring took place in accordance with College rules and regulations. Cargile was also directly involved in dealing with the labor unions at the College. There were four bargaining units then operating at the College, all affiliated with NJEA.
On September 24, 1982 Riismandel met with personnel at the Fort Dix Education Center to discuss the transition and the advertisements that were to appear in the newspapers over the weekend. He also met with Maureen McKeever, who had been the Johnson and Wales Contract Administrator and who arranged the September 24 meeting. It was proposed that the College hire some of the employees that were working in the education program at Fort Dix under the Johnson and Wales contract. Apparently, Johnson and Wales had followed a similar procedure with its predecessor.
At that meeting the transition was discussed, including rates of pay for each job title and the fact that the pay was not negotiable. The charging parties were told that for their job classifications the pay was $8 per hour. Applications to work at the College were made available at that time. Advertisements to supplement hiring from Johnson and Wales employees were placed in newspapers over the weekend of September 25 and 26, 1982. Approximately 200 applications were submitted. Interviews were conducted by Dr. Riismandel on September 27 and 28, and he spoke to over 100 people.
The first of the charging parties interviewed was Alven. She told Riismandel that she was first hired at Fort Dix in July 1978 by the Army as an English instructor. In January 1979 Burlington
County College was awarded a contract by the Army to provide the educational services to Fort Dix personnel. Johnson and Wales was awarded the contract for the period of October 1, 1981 to September 30, 1982. During this time Alven served as an instructor and was supervised by McKeever. The interview with Riismandel lasted five or ten minutes. Alven testified that Riismandel inquired as to the length of time she worked with the program and whether she enjoyed her job. He told her that he would contact her shortly. Riismandel testified that his impressions of Alven were that she was qualified "on paper," but that she did not strike him as being professional in appearance or manner, nor did she seem to be paying attention to him. Alven had requested a higher salary on her application than the nonnegotiable minimum that the Johnson and Wales employees were told was applicable. Riismandel said that he was not particularly impressed with Alven because:
She did not strike me as being professional in appearance or manner. She was considerably agitated, did not seem sometimes to hear what I was saying. I had to repeat questions a number of times, and I just wasn't impressed with her potential as an instructor for a quality E.S.L. program that we intended to run.
Prior to informing applicants of the results of interviews, Riismandel requested McKeever to supply information and a professional assessment on each Johnson and Wales applicant. McKeever told him of the union organizational campaign prior to his discussions with her regarding the charging parties, he testified that no names had been discussed and that he told McKeever that he did not care about the alleged organizational activities. In addition, Riismandel testified that a Sgt. Ortiz of the Army wanted a meeting with him to make recommendations on the holders of the ESL positions. Ortiz was the first sergeant of the ESL Company which was the unit being trained by the ESL instructors. He apparently had direct contact and direct knowledge of the teaching and ...