H.E. No. 83-5

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 the new supervisor of John Palovitz, the President of the Association, gave Palovitz an "unsatisfactory" evaluation in January 1982. The Hearing Examiner found that the supervisor was discriminatorily motivated as a result of the exercise of Palovitz of rights guaranteed by the Act. Palovitz had in April 1981 threatened to file a grievance over the refusal of the supervisor to make payment of overtime to a custodian. The supervisor responded by the use of profanity, suggesting possible future retaliation. The Hearing Examiner also found that the job performance of Palovitz since April 1981 could not justify an "unsatisfactory" evaluation in January 1982, particularly in view of Palovitz having been rated "satisfactory" and "very satisfactory" since June 1977 by a former supervisor.

By way of remedy, the Hearing Examiner recommends that the "unsatisfactory" evaluation be removed from the personnel file of Palovitz and that any future evaluations be free of the taint of discrimination for the exercise by Palovitz of protected activities.

PERC Citation:

H.E. No. 83-5, 8 NJPER 507 (¶13235 1982)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

72.315 72.323 72.342 72.361

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 83-005.pdf
Appellate Division:
Supreme Court:

H.E. NO. 83-5 1. H.E. NO. 83-5 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of DOVER BOARD OF EDUCATION, Respondent, -and- Docket No. CO-82-260-102 DOVER CUSTODIAN AND MAINTENANCE ASSOCIATION, Charging Party. Appearances: For the Dover Board of Education Green & Dzwilewski, Esqs. (Allan P. Dzwilewski, Esq.) For the Charging Party Katzenbach, Gildea & Rudner, Esqs. (Arnold M. Mellk, 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 30, 1982 by the Dover Custodian and Maintenance Association (hereinafter the A Charging Party @ or the A Association @ ) alleging that the Dover Board of Education (hereinafter the A Respondent @ or the A Board @ ) has 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 Vincent Marotta, the supervisor of John Palovitz, a custodian and the President of the Charging Party, unfavorably evaluated Palovitz in January 1982, notwithstanding that Palovitz had been satisfactorily evaluated since 1977 by a prior supervisor, and which unfavorable evaluation in January 1982 is alleged to have been in retaliation for the exercise by Palovitz of protected activities as President of the Association, all of which is 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 April 16, 1982. Pursuant to the Complaint and Notice of Hearing, hearings were held on June 14, 15 and 29, 1982 in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Oral argument was waived and the parties filed post-hearing briefs by August 10, 1982. 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. The Dover Board of Education is a public employer within the meaning of the Act, as amended, and is subject to its provisions. 2. The Dover Custodian and Maintenance Association is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions. 3. John Palovitz is a public employee within the meaning of the Act, as amended, and is subject to its provisions. 4. Although not material to the disposition of the issues raised by the Unfair Practice Charge, there was received in evidence the collective negotiations agreement effective July 1, 1978 to June 30, 1981 (J-1) and the Memorandum of Agreement extending and modifying J-1 from July 1, 1981 to June 30, 1983 (J-2). 5. Palovitz was hired as a Custodian in 1973. From 1975 through April 1982 Palovitz, while in the Custodian = s department, served as a Bus Driver/Mailman. Effective April 19, 1982, Palovitz was transferred to the Middle School as a Custodian. 6. Palovitz has been a member of the Association and its President since 1977. As President he is responsible for enforcement of the agreement, the processing of grievances, etc. In administering the agreement during the time that Harry E. Ball was Chief Custodian of Buildings and Grounds, Palovitz encountered no problems. Ball retired as of March 7, 1981. He was replaced by Vincent Marotta, who had been hired January 16, 1981 and worked with Ball during an on-the-job training period. 7. The evaluations of Palovitz were received in evidence as Exhibits J-3 through J-9. All evaluations except J-9 (January 1982) were done by Ball, J-9 having been done by Marotta. A summary of all of the evaluations indicates the following. a. June 1977 - Palovitz was rated A satisfactory @ in seven out of eight categories and A very satisfactory @ in one category (J-3). b. March 1978 - Palovitz was rated A satisfactory @ in five out of eight categories and A very satisfactory @ in the remaining three categories (J-4). c. November 1978 - Palovitz was rated A satisfactory @ in one out of eight categories and A very satisfactory @ in the remaining seven categories. He was recommended for an A above average @ pay increase and a special commendation was added to the evaluation, namely, that he was a very conscientious worker @ (J- 6). d. April 1979 - Palovitz was rated A very satisfactory @ in all eight categories (J-7). e. (Undated) 1980 - Palovitz was rated A very satisfactory @ in all eight categories (J-5). f. January 1981 - Palovitz was rated A very satisfactory @ in all eight categories (J-8). g. January 1982 - Palovitz was rated A unsatisfactory @ in two out of eight categories; A satisfactory @ in five out of eight categories; and A very satisfactory @ in one category. His A total evaluation @ was deemed A unsatisfactory. @ This was the first evaluation done by the new supervisor, Vincent Marotta, who made an additional comment, indicating that he felt that Palovitz takes criticism and any change in his daily routine as a A personal assault @ and on several occasions Palovitz has become A very nasty and argumentive @ (sic). He stated further that Palovitz would have to A improve on his attitude @ if continued employment was to be recommended (See J-9). 8. After Marotta became Chief Custodian in March 1981 Palovitz and Marotta had a confrontation over the payment of overtime to one Joseph Tozzi in April 1981. Tozzi had, on his own initiative, put in two hours of overtime on Easter Saturday, which involved the shutting off of a sump pump, and had sought payment for the overtime. Marotta concluded that Tozzi should take compensatory time off. Palovitz became involved and pointed out that this was not provided for in the agreement (J-1). Several days later Marotta agreed to pay the two hours overtime due to Tozzi. According to Palovitz, this change in Marotta = s position resulted from Palovitz having stated that he was going to file a grievance if Tozzi was not paid the overtime. In a conversation between Palovitz and Marotta regarding this incident, Palovitz testified credibly that Marotta said A ...he had a shit list and when anybody made the shit list they stayed on it @ (1 Tr. 27). The Hearing Examiner does not credit Marotta = s denial that such a statement was made by him to Palovitz, based on an overall appraisal of the demeanor of the respective witnesses and their testimony. 9. Palovitz also testified without contradiction that sometime in April 1981 Marotta stated, in the presence of a group of Custodians, that other school districts do not have associations and that one is not needed at A our schools @ (1 Tr. 29). 10. After Easter 1981 Marotta commenced complaining that Palovitz was wasting too much time on his job, a complaint that Palovitz said had never been made by Ball. 11. Other than the Tozzi overtime incident, supra, there were no significant problems between Palovitz and Marotta during the balance of 1981 with the exception of some friction over Marotta = s having ordered Palovitz to paint a snow plow in late November or early December, which Palovitz claimed interfered with the performance of his Bus Driver/Mailman duties. 12. As noted above, the A unsatisfactory @ evaluation of Palovitz occurred in January 1982 (J-9). Before and after there occurred several incidents of friction between Palovitz and Marotta. For example, early in January 1982 Palovitz sought to take a A sick day @ for January 4, 1982 when Palovitz had to take off a day to meet a plumber regarding the repair of a furnace at his home. Marotta stated that he was not A sick @ and, therefore, would have to take a A personal day. @ This incident escalated to the point where R. Paul Muni, the Assistant Superintendent and Secretary of the Board, was called in to settle the matter. Thereafter, in February 1982, there was an incident regarding whether or not Palovitz had taken a tape recorder from a school illegally. There were also several other minor incidents. 13. As of March 1, 1982, Marotta directed Palovitz to commence keeping a daily log in the same manner in which two employees in maintenance had been keeping such logs since July 1, 1981. Palovitz claimed that he was being A singled out. @ 14. In April 1982, Muni and Palovitz discussed the latter = s problems with Marotta and Muni suggested that, since there was a Custodian vacancy in the Middle School, it would be best for Palovitz to accept a transfer. Certain stipends, which Palovitz had been receiving as a Bus Driver, were continued through June 1982 after Palovitz was transferred to the Middle School as a Custodian on April 19, 1982. 15. The Hearing Examiner does not credit the testimony of Marotta that Ball told him that Palovitz was a A problem @ and that he resisted change. Ball was called as witness by the Respondent and did not corroborate Marotta in this regard. Ball testified only that, in his opinion, Palovitz was not completing his runs on time. Ball said that was all that he discussed with Marotta regarding the job performance of Palovitz. 16. Regarding Ball = s evaluations of Palovitz (J-3 through J-8, supra), Ball testified without contradiction that while he was inclined to be more lenient in his evaluations of all employees, including Palovitz, he used his best judgment and found Palovitz to be a good employee. 17. Palovitz was given an employment contract for the 1982- 83 school year under date of May 25, 1982 (R-3). His annual salary will include separate stipends for a bus driver = s license and a A Black Seal @ boiler license. He will not receive the $200 per year stipend for operating the Special Education bus since his duties will be those of a Custodian. THE ISSUE Did the Respondent Board violate Subsections (a)(1) and (3) of the Act when Vincent Marotta, the supervisor of John Palovitz, gave Palovitz an A unsatisfactory @ evaluation in January 1982? DISCUSSION AND ANALYSIS The Respondent Board Violated Subsections (a)(1) And (3) Of The Act When Vincent Marotta Gave John Palovitz An A Unsatisfactory @ Evaluation In January 1982 In order for the Charging Party to prevail it must prove by a preponderance of the evidence that the action of Vincent Marotta in giving John Palovitz an A unsatisfactory @ evaluation in January 1982 was A discriminatory @ and was motivated, in whole or in part, by anti-union animus, the effect of which was to discourage employees in the exercise of rights protected by the Act: Haddonfield Borough Board of Education, P.E.R.C. No. 77-36 3 NJPER 71, 72 (1977); City of Hackensack, P.E.R.C. No. 77-49, 3 NJPER 143, 144 (1977), rev = d. on other grounds, 162 N.J. Super. 1 (App. Div. 1978), aff = d. as modif., 82 N.J. 1 (1980); and Cape May City Board of Education, P.E.R.C. No. 80-87, 6 NJPER 45, 46 (1980). Further, it appearing to the Hearing Examiner that this is a case of A dual motive, @ the Charging Party must meet the A causation test @ enunciated by the National Labor Relations Board (NLRB) in Wright Line, Inc., 251 NLRB No. 150, 105 LRRM 1169 (1980).2/ In Wright Line, the NLRB adopted the analysis of the United States Supreme Court in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), which involves the following requisites in determining employer motivation: (1) the General Counsel (Charging Party) 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 employer = s decision to discipline; and (2) once this is established, the employer has the burden of demonstrating that the same disciplinary action would have taken place even in the absence of protected activity. Based on the Haddonfield line of cases, supra, and the Wright Line - Mt. Healthy analysis, supra, the Hearing Examiner finds and concludes that the Charging Party has demonstrated by a preponderance of the evidence that the Respondent Board by its agent, Vincent Marotta, violated Subsection (a)(3), and derivatively Subsection (a)(1), of the Act. It should be noted that the Charging Party alleged and proved only that the A unsatisfactory @ evaluation of Palovitz by Marotta in January 1982 was violative of the Act, there being no allegation or proof that the transfer of Palovitz by R. Paul Muni in April 1982 was illegally motivated. Palovitz has been an employee of the Respondent Board since 1973. He has been a member of the Association and its President since 1977. His evaluations from June 1977 to November 1978 improved steadily in the categories of A satisfactory @ and A very satisfactory @ (J-3, J-4 and J-6). Beginning in April 1979 and continuing through January 1981 Palovitz received A very satisfactory @ evaluations in all eight categories (J-5, J-7 and J-8). During the foregoing period from June 1977 to January 1981, Palovitz was evaluated by Harry E. Ball, the Chief Custodian of Buildings and Grounds, who retired as of March 7, 1981. Ball testified that while he was inclined to be more lenient in his evaluations of all employees, including Palovitz, he used his best judgment and found Palovitz to be a good employee. In fact, Ball = s only qualifying comment was that Palovitz had a problem of not completing runs on time as a Bus Driver/Mailman.3/ Palovitz, as President of the Association, had encountered no problems with Ball in the administration of the collective negotiations agreement. (See Findings of Fact No. 6 7, 15 & 16, supra). Shortly after Marotta succeeded Ball as Chief Custodian in March 1981, he had a confrontation with Palovitz in April 1981 regarding the payment of overtime to Joseph Tozzi. Marotta initially offered Tozzi compensatory time, which was not provided for in the agreement. Marotta only agreed to the payment of overtime to Tozzi after Palovitz stated that he was going to file a grievance. (See Finding of Fact No. 8, supra). The Hearing Examiner has credited the testimony of Palovitz that Marotta, in a conversation regarding the Tozzi incident, said to Palovitz that A ...he had a shit list and when anybody made the shit list they stayed on it. @ Palovitz also testified without contradiction that in April 1981 Marotta, in the presence of a group of Custodians, said that other school districts did not have associations and that one is not needed at A our schools. @ (See Findings of Fact Nos. 8 & 9, supra). From the time of the Tozzi incident in April 1981 until Marotta = s A unsatisfactory @ evaluation of Palovitz in January 1982, the only problems which occurred between Marotta and Palovitz, which were the subject of testimony, were as follows: (1) after Easter 1981 Marotta commenced complaining that Palovitz was wasting too much time on the job; (2) some friction occurred over Marotta = s having ordered Palovitz to paint a snow plow in November or December 1981, which Palovitz claimed interfered with his Bus Driver/Mailman duties; and (3) that in early January 1982 Palovitz and Marotta had a dispute over whether Palovitz should take a sick day or a personal day for meeting a plumber regarding the repair of a furnace. (See Findings of Fact Nos. 10, 11 and 12, supra). It is in the context of the foregoing recital of events that one must view Marotta = s decision to give Palovitz an A unsatisfactory @ evaluation in January 1982 (see Finding of Fact No. 7g and J-9, supra). An examination of this evaluation is most interesting. While Palovitz was rated A very satisfactory @ in one category, A satisfactory in five out of eight categories and A unsatisfactory @ in only two out of eight categories, Marotta elected to denominate the A total evaluation @ as A unsatisfactory. @ A category-by-category examination of Exhibit J-9 discloses the following: Palovitz was rated A very satisfactory @ for dependability; Palovitz was rated A satisfactory @ for attendance, production, quality of work, ability to learn and personality; and Palovitz was rated A unsatisfactory @ for attitude (willing worker - cooperative) and emotional stability (accepts criticism and makes an effort to improve). As noted previously, the A total evaluation @ was deemed by Marotta to be A unsatisfactory. @ Nevertheless, Marotta recommended that Palovitz be continued in employment with the notation of several written comments, inter alia: Palovitz A ...takes criticism and any change in his daily routine as a personal assault against him. On several occasions he has become very nasty and argumentive (sic) with me so much that Mr. Muni had to get involved... @ Marotta concluded his comments by stating that Palovitz would have to A ...improve on his attitude... @ if continued employment was to be recommended.4/ In support of his conclusion that the Respondent Board violated Subsection (a)(3) of the Act by the conduct that Marotta, the Hearing Examiner first notes that the Charging Party has established preliminarily that Palovitz was engaged in protected activities as President of the Association in April 1981, at the time of the Tozzi incident, and that the Respondent expressly or impliedly knew that Palovitz was so engaged: Haddonfield, supra (3 NJPER at 72). Notwithstanding that Palovitz did not actually file a grievance, but merely threatened to do so if Tozzi was not paid the overtime, the Commission has recognized that: ...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 or certified unit, constitute protected activities under our Act... North Brunswick Township Board of Education, P.E.R.C. No. 79-14, 4 NJPER 451, 454 (fn. 16) (1978). Further, the Hearing Examiner concludes that Marotta manifested anti-union animus toward Palovitz and the Association since becoming Chief Custodian, both by his A shit list @ statement to Palovitz at the time of the Tozzi overtime incident, and by his statement, in the presence of a group of Custodians, that other school districts did not have associations and one is not needed at A our schools. @ Clearly, the logical effect of these utterances by Marotta was to discourage employees in the exercise of rights protected by the Act. See City of Hackensack and Cape May City Board of Education, supra. Now moving to the Wright Line - Mt. Healthy analysis, the Hearing Examiner is clear in his conclusion that the Charging Party has established a prima facie showing that the protected activities engaged in by Palovitz, supra, were a A substantial @ or a A motivating @ factor in his having received from Marotta an A unsatisfactory @ evaluation in January 1982. The causal nexus between the events of April 1981 and the evaluation of January 1982 is evident from the fact that nothing of significance transpired during these months, which could rationally justify an A unsatisfactory @ evaluation in January 1982. This is particularly so in view of the history of favorable evaluations by Ball since June 1977. Likewise, given the foregoing, the Respondent has failed to meet the burden of demonstrating to the satisfaction of the Hearing Examiner that the same A unsatisfactory @ evaluation would have occurred even in the absence of the exercise of protected activities by Palovitz as President of the Association. It can be fairly concluded from the analysis of the evaluation (J-9, supra), that Marotta engaged in A overkill @ in denoting that the A total evaluation @ was A unsatisfactory @ when Palovitz was rated A unsatisfactory @ in only two out of eight categories. The personal written comments of Marotta annexed to the evaluation are a further indication that Marotta was discriminatorily motivated against Palovitz and that this motivation was causally related to the events of April 1981, supra. The Hearing Examiner finds it plainly implausible that the job performance of a long-term employee such as Palovitz could precipitously plummet in such a short span of time given the record in this case. The logical explanation, as noted above, is that Marotta was discriminatorily motivated against Palovitz and that this motivation tainted the January 1982 evaluation. Based on all of the foregoing, the Hearing Examiner finds and concludes that the Respondent Board has violated Subsection (a)(3), and derivatively Subsection (a)(1), of the Act by its conduct herein. Accordingly, an appropriate remedy will be recommended hereinafter. * * * Upon the entire record in this case, the Hearing Examiner makes the following: CONCLUSION OF LAW The Respondent Board violated N.J.S.A. 34:13A-5.4(a)(3), and derivatively 5.4(a)(1), when Vincent Marotta gave John Palovitz an A unsatisfactory @ evaluation in January 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 evaluating employees such as John Palovitz as A unsatisfactory @ for engaging in protected activities on behalf of the Dover Custodian and Maintenance Association. 2. 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 the Act, particularly, by evaluating employees such as John Palovitz as A unsatisfactory @ for engaging in protected activities on behalf of the Dover Custodian and Maintenance Association. B. That the Respondent Board take the following affirmative action: 1. Forthwith remove from the personnel file of John Palovitz the A unsatisfactory @ evaluation made by Vincent Marotta in January 1982. Any future evaluations of Palovitz are to be made without regard to the exercise of Palovitz of rights guaranteed by the Act and are to be free from discriminatory motivation in connection therewith. 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 by the Respondent Board 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 Board has taken to comply herewith. /s/Alan R. Howe Hearing Examiner DATED: August 16, 1982 Trenton, New Jersey 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 Appellate Division adopted the Wright Line analysis in A dual motive @ cases in East Orange Public Library v. Taliaferro, 180 N.J. Super. 155 (1981), which the Commission has followed in cases beginning with Madison Board of Education, P.E.R.C. No. 82-46, 7 NJPER 669 (1981). 3/ Ball did not corroborate Marotta = s testimony that Ball told Marotta that Palovitz was a problem and resisted change. 4/ Although the Hearing Examiner has made several findings of fact regarding events that transpired after the A unsatisfactory @ evaluation in January 1982, they are not germane to a decision as to whether or not the conduct of Marotta violated the Act and, thus, will not be discussed further. ***** End of HE 83-5 *****