On appeal from the Public Employment Relations Commission, Docket No. CO-2007-055.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically January 18, 2011
Before Judges Reisner and Alvarez.
The Wall Township Board of Education appeals from a final determination of the Public Employee Relations Commission (PERC) decision denying the Board's motion for reconsideration. We affirm.
The underlying dispute involved Bonnie Murphy, a computer technician whom the Board hired in 1999. Murphy worked on a year-to-year contract basis, and the Board renewed her contract for 2006-07. Accordingly, on June 15, 2006, Murphy signed a contract covering July 1, 2006 to June 30, 2007. However, shortly after the Board renewed her contract, Murphy's supervisor gave her a negative evaluation dated June 23, 2006.
On July 12, 2006, Murphy wrote her supervisor a letter emphatically disagreeing with the evaluation and indicating her intent to file a grievance. The supervisor refused to accept a grievance from her, contending that the evaluation was not grievable. Also on July 12, 2006, Murphy's bargaining unit, the Wall Township Information Technology Association (Association), sent the supervisor a separate letter objecting to the requirement that Murphy prepare a formal improvement plan, on the grounds that the employer could not impose such a requirement without negotiating over it.*fn1 The supervisor responded that he would prepare an improvement plan for Murphy if she would not prepare one herself. By letter dated July 17, 2006, Murphy's union representative also requested a meeting with the Board's personnel committee to discuss Murphy's evaluation.
Instead of meeting with either the union or Murphy to discuss the situation, Murphy's supervisor sent her a memorandum on July 19, 2006, terminating her employment. The Board ratified the termination at its August 15, 2006 meeting. On August 24, 2006, the union filed an unfair practice complaint with PERC contending that Murphy was terminated in retaliation for "exercising protected rights" under the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-5.4a.
At an April 7, 2009 hearing before a PERC hearing examiner, the parties agreed to litigate on a stipulated record the issue of whether Murphy was engaged in protected activity when she attempted to challenge her evaluation. See N.J.A.C. 19:14-6.7 (parties may bypass an evidentiary hearing before a hearing examiner and present the case directly to PERC based on stipulated facts). As PERC later noted in its decision, rather than litigating its defense that "Murphy was terminated because of concerns about her job performance," the Board chose to litigate its alternate claim "that since Murphy was acting on her own behalf to challenge her evaluation, she was not engaged in protected activity." Therefore, the parties briefed that issue before PERC.*fn2
In a letter to the arbitrator dated April 7, 2009, the Board's attorney, James Schwerin, confirmed that the Board agreed to waive a testimonial hearing and have PERC decide the case based on stipulated facts. Significantly, Schwerin's letter noted a "cc" to the Superintendent of Schools.
In a decision issued on October 29, 2009, PERC found that Murphy was engaging in protected activity when she attempted to file a grievance and when her union asserted on her behalf the Board's obligation to negotiate over the requirement that non-teaching employees prepare professional improvement plans. PERC also found sufficient circumstantial evidence that Murphy was fired because of this protected activity and ordered the Board to reinstate her with back pay retroactive to her 2006 termination date. By letter dated October 30, 2009, Schwerin informed the Superintendent of the outcome, enclosing PERC's decision and stating his view that "PERC erred by ignoring much of the law we cited as to the lack of protected activity when complaining about one's own evaluation."
After receiving PERC's decision, the Board filed a motion for reconsideration on November 12, 2009, claiming that it had changed law firms "in the Spring of 2009" and that Schwerin was not authorized to waive a hearing. In support of the motion, the Board submitted certifications from the Board President and the Superintendent, attesting that Schwerin's law firm had not advised them ...