H.E. No. 83-13

Synopsis:

A Hearing Examiner recommends that the Commission find that the Camden County Board of Freeholders committed an unfair practice when they allowed the Assistant Personnel Director Mildred DiFante to serve as the President of the designated majority representative, Camden Council #10 since she functioned in the County as a high-level supervisor if not a managerial executive and, accordingly, her serving simultaneous positions constituted a violation of N.J.S.A. 34:13A-5.4(a)(2).

It was also found that Camden Council #10 violated subsection (b)(1) when ait failed to properly represent the individual who rought the instant charge.

A Hearing Examiner's Recommended Report and Decision is not a final administrative determination of the Public Employment Relations Commission. The case is transferred to the Commission, which reviews the Recommended Report and Decision, any exceptions thereto filed by the parties, and the record, and issues a decision which may adopt, reject or modify the Hearing Examiner's findings of fact and/or conclusions of law.

PERC Citation:

H.E. No. 83-13, 8 NJPER 654 (¶13311 1982)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

23.26 72.24 73.113

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 83-013.pdf
Appellate Division:
Supreme Court:

H.E. NO. 83-13 1. H.E. NO. 83-13 1. NOTICE TO EMPLOYEES PURSUANT TO AN ORDER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION AND IN ORDER TO EFFECTUATE THE POLICIES OF THE NEW JERSEY EMPLOYER-EMPLOYEE RELATIONS ACT, AS AMENDED, We hereby notify our employees that: H.E. NO. 83-13 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CAMDEN COUNTY BOARD OF FREEHOLDERS and CAMDEN COUNCIL #10, NJCSA, MILDRED DI FANTE, PRESIDENT, Respondents, -and- Docket No. CI-80-3-32 THERESE M. DONLAN, Charging Party. Appearances: For Camden County Board of Freeholders Vincent J. Paglione, First Assistant County Counsel For Camden Council #10, NJCSA Carmen and Mills, Esqs. (Joseph Carmen, Esq.) For the Charging Party Therese M. Donlan, Pro Se HEARING EXAMINER = S RECOMMENDED REPORT AND DECISION On August 8, 1979, Therese M. Donlan, an individual, filed an Unfair Practice Charge with the Public Employment Relations Commission (Commission) alleging Mildred DiFante, President of Camden County No. 10, NJCSA, engaged in unfair practices within the meaning of N.J.S.A. 34:13A-5.4(b)(1), (3) and (4)1/ in that (1) Mildred DiFante = s holding simultaneous positions as both president of Council 10 and Personnel Assistant for the County serves to restrain employees in their exercise of rights in that A employees of the County who are members of Council 10 hesitate to follow up on grievances which she ignores...for fear of some type of retribution by her in her position in the Personnel Department. There is a conflict of interest in DiFante = s holding the two capacities. @ (2) DiFante, president of the Board of Trustees of Council #10 failed to process a grievance submitted by the Charging Party regarding a salary dispute of February 13, 1979. (3) DiFante and Ronald Kerins, Camden County Administrator, failed to provide a salary increase pursuant to the contract when the Charging Party was given a promotion. Respondents advised Charging Party that a policy exists whereby any title which is vacant on January 1 does not receive the negotiated salary increase. When the Charging Party asked to see a copy of that policy she was told it was not a written policy and further was never furnished a copy of the contract by either the County or the Association. It was also alleged that Donlan = s shop steward, Michael Geddin, accompanied Donlan to the meeting with Kerins and DiFante but was not permitted by either of these parties to be present at the meeting. On November 28, 1979, Donlan filed two amendments to her original charge wherein she named the Camden County Board of Freeholders, and its agents as well as Camden Council 10 and DiFante as Respondents. It was specifically alleged that 1) since the time that the original unfair practice charge was filed the County had, through its agents, made threats to her to drop the instant action; 2) that she had made formal applications to have per position of Assistant Planner upgraded to Senior Planner since she performed higher level work than was required by her job description. During the time period in question, there was an opening for the position of Senior Planner. Donlan took the test for this position, came in number one but never got the job. The person who came in number two was hired on October 29, 1979, yet that person had three years less seniority; 3) At the same time Donlan received a notice of layoff and in fact was laid off from September 1979 until November of 1979. Donlan claimed that the County = s action vis-a-vis the denial of the higher classification and the subsequent layoff were designed to interfere with her exercise of protected rights. It was claimed that the County violated N.J.S.A. 34:13A- 5.4(a)(1), (2), (3), (4), (5), (6) and (7)2/ and the Association violated ' 5.4b(1), (3), (4) and (5). It appearing that the allegations of the charge if true might constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on September 21, 1981. Hearings were held on January 19 and 20, 1982, before the undersigned at which time all parties were given an opportunity to present evidence, examine and cross-examine witnesses, argue orally and present briefs.3/ It is noted that neither Camden County nor Council 10 produced witnesses or introduced any evidence at this hearing. The findings of fact below are based entirely upon the testimony of Therese Donlan, the Charging Party. Therese Donlan served as a Planner Trainee for the County. On January 5, 1979, she received notice, via a Civil Service CS-6 form that she had received a promotion to the title of Assistant Planner. The form was signed by Donlan = s department head, Joseph Patermo. The form indicated that her salary would go from $10,415 to a new base salary of $13,467. Donlan signed the form and it was returned to her on February 13, 1979, after being processed by the Department of Personnel. However, the typed in base salary of $13,467 was struck and written by hand was the salary of $12,242. The contract between Council 10 and the County contains a grievance procedure that ends in binding arbitration. The first step of the grievance procedure provides that the A employee shall take up the grievance or dispute with the immediate supervisor within five working days of its occurrence. @ In accordance with this provision, on February 14, 1979 Donlan sent a memo to her supervisor Patermo noting her objection to this alteration of her salary as expressed on the CS-6 form. The only response that Donlan ever received in reference to this A Notice of Dispute @ was that Patermo told Donlan that he had apprised Mildred DiFante, the Personnel Assistant for the County, of the letter. Donlan then contacted DiFante asking her about this incident. She also asked DiFante to provide her with a copy of the contract between Council 10 and the County. A copy of it was provided but there was no list of any salaries in the contract. Donlan then asked DiFante to provide her with a copy of the salary schedule. This was denied her. DiFante would only show Donlan her own salary as stated in the County records. Donlan testified as to how she went back and forth from DiFante to several county officials looking for a copy of the salary schedules but was never able to obtain one. Donlan had a meeting with DiFante and the County Administrator Ronald C. Kerins wherein she complained about how her new salary was reduced on the CS-6 form. Donlan went to this meeting accompanied by her shop steward. He was not allowed to attend this meeting by DiFante and Kerins. But DiFante never made clear whether her position at this meeting was as Council president or as representative of the County. It was explained to Donlan that it was a county policy that when a position is vacant at the first of the year anyone who is hired to fill that vacancy will be paid at the prior year = s salary and not the current salary under the contract. DiFante acknowledged this was not part of the written contract but claimed this was an oral understanding between Council 10 and the County. Donlan then attempted to appeal her grievance on the salary. She sent a certified letter to DiFante, addressed to the Employee Grievance Committee, care of DiFante. DiFante refused to accept the letter or further process Donlan = s grievance. Donlan began an extensive letter writing campaign to County officials and made numerous requests to any number of people in the County administration but the Association never pursued her grievance.4/ Donlan also claimed that she should have been paid at the rate of a Senior Planner. In May of 1979 she applied to Civil Service to have her position upgraded. After her application was denied by the County, Civil Service conducted a desk audit upon the work of Donlan and determined that she was not doing work at the Senior Planner level and denied the request. In September 1979 Mrs. Donlan was laid off. A few weeks later the County hired another employee into the planning department at a Planner Trainee level. Donlan appealed this action to the County and in November of 1979 Donlan was rehired as an Assistant Planner. She was also awarded backpay, retroactive to the time that the County hired this other employee for, approximately six of the eight weeks she was laid off. She was not paid for the approximately two weeks that the position was vacant. Finally, the County had an opening for a Senior Planner in Transportation. A Civil Service test was conducted and Donlan came in first on the test. She was passed over and on October 29, 1979, the individual who came in second on the test was appointed to the position. It is significant that on January 10, 1980 (after the initial charges were filed), the County, through the office of the County Counsel, agreed to bring her outstanding grievances and charges against the County to arbitration. The matters included in the agreement were A the 10% increase in Assistant Planner salary retroactive from August 7, 1978 to May 21, 1979, to compensation as a Senior Planner from May 22, 1979 to September 24, 1979, and appointment to Senior Planner Transportation as permanent employee effective October 29, 1979. @ No mention was made of the approximately two weeks = back salary that Donlan never received when she appealed her layoff. At the time, the County agreed to waive all timeliness requirements and agreed to allow Ms. Donlan to bring these matter to arbitration. However, Ms. Donlan left the employ of the County and abandoned the arbitration on her own. * * * In Jeffrey Beale and the N.J. Tpk. Auth., P.E.R.C. No. 81- 64, 6 NJPER 570 ( & 11284 1980), affm = d App. Div. N.L. A-1263-80T3 (10/31/81), the Commission held A we do not believe that an individual employee in the absence of any allegations of collusion or unfair representation by the majority representative can use the unfair practice forum to litigate an alleged breach of a collective negotiations agreement unrelated to union activity. The violation of the duty to negotiate terms and conditions of employment implied by such an allegation is more appropriately asserted by the majority representative. @ Here DiFante = s dual roles by their very nature smack of collusion and are violative of ' 5.4(a)(5). In this regard it is significant that the County agreed to take all of Donlan = s grievances to arbitration to resolve her claimed contract rights. To that extent the County = s actions have corrected the harm in this situation as that harm relates to Donlan as an individual. As to Donlan = s claim that she should be paid as a Senior Planner because she was doing Senior Planner work, her lower salary as an Assistant Planner was the result of a desk audit and a Civil Service decision. The appeal of that decision belongs before Civil Service. This is not a matter for the Commission. Donlan did establish a prima facie case to constitute a ' 5.4(a)(1) violation. Donlan introduced many documents relating to her outstanding performance on the job, yet in September of 1979 she was laid off and shortly thereafter another person was hired to take her place and the very next month on October 29, 1979, she was passed over when the County promoted an employee to the vacant Senior Planner position. Both actions came on the heels of Donlan = s difficulties with DiFante. Proof of motive of anti-union animus is not an essential element to establish an independent violation of ' 5.4(a)(1). In re New Jersey College of Medicine and Dentistry, P.E.R.C. No. 80- 11, 4 NJPER 421 (1978); In re City of Hackensack, P.E.R.C. No. 78-71, 4 NJPER 190 (1978), affm = d App. Div. Docket No. A-3562-77 (unpublished opinion 1979); In re New Jersey Sports & Exposition Auth., P.E.R.C. No. 80-73, 5 NJPER 550 ( & 10285 1979). Given Donlan = s outstanding record as an employee, her run-in with DiFante, who controlled both the County Personnel Office and the Association, and Donlan = s subsequent letter writing campaign, there is a clear causal connection between Donlan = s exercise of her protected rights and her being passed over. In this regard her layoff in September is also significant. She was reinstated only after an internal administrative hearing and the hearing officer who found she should be reinstated with backpay was not part of Mildred DiFante = s personnel office. Rather he was with the Office of the County Counsel. The County had the opportunity to present evidence as to any business justification they may have had for passing over Donlan but they declined to do so. As to the claim relating to the Association = s duty of fair representation, an Association A must exercise reasonable care and diligence in investigating, processing and presenting grievances; it must make a good faith judgment in determining the merits of the grievance; and it must treat individuals equally by granting equal access to the grievance procedure and arbitrability for similar grievances of equal merit. @ N.J. Turnpike Employees Union Local 194 IFPTE, AFL-CIO and Kaczmarek, P.E.R.C. No. 80-38, 5 NJPER 112 ( & 10215 1979). DiFante systematically avoided Donlan and ignored her registered letters and never even processed her grievances. It was established that DiFante as Personnel Assistant was the second highest personnel officer in the County. It was not established at the hearing what Mildred DiFante = s exact duties were but DiFante clearly held a high level administrative position while simultaneously serving as President of Council #10.5/ Pursuant to ' 5.3 managerial executives may not A form, join or assist @ employee associations. Subsection 34:13A-3(f) defines a managerial executive: Managerial executive of a public employer means...persons who are charged with the responsibility of directing the effectuation of such management policies and practices... The original grievance brought by Donlan in effect challenged the County policy that new employees filling vacant positions would not receive a salary raise after January 1 of the previous year. DiFante, as Personnel Assistant, applied this policy in accordance with the County position. Undeniably such an application was at odds with the interests of County employees. DiFante = s actions, in this instance at least, were the actions of a managerial executive. See Borough of Montvale, P.E.R.C. No. 81-52, 6 NJPER 507 ( & 11259 1980), where the Commission established a test for the above definition within the representation context. In arriving at this test, the Commission looked to the NLRB. The NLRB and reviewing courts, have adopted several tests to determine managerial executives.6/ The pertinent test here is A those who are so closely aligned with management and its labor policies as to place the employees in a position in a potential conflict of interest between the employer and their fellow workers. @ See e.g. NLRB v. Bell Aerospace Co., 416 U.S. 267, 85 LRRM 2945 (1974); Illinois State Journal Register, Inc. v. NLRB, 412 F.2d 37, 71 LRRM 2668 (7th Cir. 1969); In re Palace Laundry & Dry Cleaning Corp., 75 NLRB No. 40, 21 LRRM 1039 (1947); In re Kitsap Cty. Auth Dealers Ass = n, 124 NLRB 123, 44 LRRM 1560 (1959); In re General Dynamics Corp., 215 NLRB No. 124, 87 LRRM 1705 (1974); In re Textron, Inc., 219 NLRB No. 42, 89 LRRM 1664 (1975). See also R. Gorman, Basic Text on Labor Law, p. 37-39 (1976). DiFante = s position that promoted employees are paid on the prior year = s salary structure even though there is no mention of this in the contract clearly shows the inherent conflict in her holding the two positions. The undersigned is satisfied that, under the statutory definition and the NLRB tests which grew out of its administrative experience, Mildred DiFante functions as a managerial executive in the administration of the County = s labor relations policies, and the County dominated and interfered with the administration of Council #10 NJCSA when it permitted DiFante to serve in both the County and Employee Association administrations. Moreover, it is not necessary to make a definitive finding that DiFante is a managerial employee to find the County violated ' 5.4(a)(2). The Act states A Public employers, their representatives or agents are prohibited from...dominating or interfering with the...administration of any employee organization. @ The NLRB has continually found that it is unlawful interference when an employer permits a high-level employee to actively participate in union affairs. See, Welsbach Electrical Corp., 236 NLRB No. 63, 99 LRRM 1271 (1978), where the employer violated ' 8(a)(2) of NLRB when it interfered with the administration of a union by permitting high-level supervisors to become and remain officers of the union while simultaneously permitting them to hold their positions as supervisors. See also Abilene Sheet Metal Contractors Ass = n, 236 NLRB No. 94, 95 LRRM 1129 (1977); Western Exterminator Co., 223 NLRB No. 181, 92 LRRM 1162 (1976).7/ It is clear here that the County interfered with its employee Therese Donlan in her exercise of protected rights by permitting Mildred DiFante to maintain her position of President in the Association while continuing to hold a position of high- level supervisor. I further recommend that the Commission find the Association committed a violation of ' 5.4(b)(1) for DiFante = s refusal to process Donlan = s grievances violated the Association = s duty of fair representation. A breach of the duty of fair representation occurs only when a union = s conduct is arbitrary, discriminatory or in bad faith. Sanginaro v. Attorney General, State of New Jersey, 87 N.J. 480 (1981); City of Union City and Wesley Spell, P.E.R.C. No. 82-65, 8 NJPER 98 ( & 13040 1982). Section 5.3 provides that a majority representative shall be responsible for representing the interests of all employees without discrimination. No reason was offered by the Association as to why Donlan = s grievances were not processed by the Association and accordingly it must be found that such failure was by reason of bad faith due to DiFante = s conflicting positions.8/ In fashioning a remedy here it must be borne in mind that the employer did attempt to resolve Donlan = s complaint against the County via arbitration. The Act provides at ' 5.3 that grievance procedures established by agreement between the public employer and the representatives organization shall be utilized for any dispute covered by the terms of such agreement. Given Donlan = s refusal to avail herself of arbitration in contravention of the statutory scheme, I do not believe that a A make whole @ remedy as to Donlan salary disputes would serve the best interests of that statutory scheme.9/ The arbitration agreement however did not resolve the salary for the approximately two weeks that Donlan did not receive as a result of the County = s own internal hearing. I will therefore recommend that the Commission issue the following order. Recommended Order The Respondent Camden County cease and desist 1) from interfering with the exercise of protected rights of its employees by failing to promote its employees when they file grievances or otherwise enforce their contractual rights. 2) from interfering with the administration of any employee organization by permitting Mildred DiFante from holding a high level supervisory and/or managerial position in the County while serving as President of Camden Council #10 NJCSA. 3) Order Mildred DiFante as an employee of the Camden County Board of Freeholders to cease and desist from maintaining a high level managerial and/or supervisory position with the County while at the same time serving as President of Camden Council #10 NJCSA. 4) Reimburse Therese Donlan for approximately two weeks = salary for the period in September 1979 when Donlan was laid off but was never reimbursed. 5) Order the Respondent Camden Council #10 to cease and desist from interfering with employees in the exercise of protected rights by refusing to process the grievances of its employees, specifically Therese Donlan. 6) Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix A A. @ Copies of such notices on forms to be provided by the Commission, shall be posted immediately upon receipt thereof, and, after being signed by the Respondents = authorized representatives, shall be maintained by them for a period of at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondents to ensure that such notices are not altered, defaced, or covered by other materials. 7) Notify the Chairman of the Commission within twenty (20) days of receipt what steps the Respondents have taken to comply herewith. /s/Edmund G. Gerber Hearing Examiner DATED: October 25, 1982 Trenton, New Jersey WE WILL NOT interfere with the exercise of protected rights of our employees by failing to promote our employees when they file grievances or otherwise enforce their contractual rights. WE WILL NOT interfere with the administration of any employee organization by permitting Mildred DiFante from holding a high level supervisory and/or managerial position in the County while serving as President of Camden Council #10, NJCSA. WE WILL order Mildred DiFante as an employee of the Camden County Board of Freeholders to cease and desist from maintaining a high level managerial and/or supervisory position with the County while at the same time serving as President of Camden Council #10 NJCSA. WE WILL reimburse Therese Donlan for approximately two weeks = salary for the period in September 1979 when Donlan was laid off but was never reimbursed. 1/ These subsections prohibit employee organizations, 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) Refusing to negotiate in good faith with a public employer if they are the majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit; (4) Refusing to reduce a negotiated agreement to writing and to sign such agreement. @ 2/ 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; (2) Dominating or interfering with the formation, existence or administration of any employee organization; (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; (4) Discharging or otherwise discriminating against any employee because he has signed or filed an affidavit or complaint or given any information or testimony under this act; (5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative; (6) Refusing to reduce a negotiated agreement to writing and to sign such agreement; (7) Violation any of the rules and regulations established by the commission. @ 3/ Although both the County and Council 10 and Mildred DiFante expressed an interest in filing briefs in this matter, neither of them has done so. 4/ It is noted that another union, AFSCME, which represented County employees in a different unit, brought this same issue of paying new employees at the prior year = s pay rate to arbitration and was successful in that proceeding. 5/ There was a representation made by the attorney for Council #10 and DiFante that DiFante no longer performs supervisory functions for the County. This representation is not evidence and cannot be considered here. 6/ See Lullo v. Int = l Assn of Fire Fighters, 85 N.J. 409 (1970) as to the appropriateness of looking to the NLRB. 7/ But see, Nassau and Suffolk Contractors Ass = n, Inc., 118 NLRB 174, 40 LRRM 174, 40 LRRM 1146 (1957), where although a violation was found, it was recognized that in certain industries certain low-level supervisors, i.e. foremen, may serve actively in unions without violating 8(a)(2). In this regard the Commission held in Bergen Cty. Bd. of Chosen Freeholders and Bergen Cty. CSA Council 5, P.E.R.C. No. 69 (1971) that a low-level supervisory employee of the county who did not have the power to hire, fire, discipline or effectively recommend same had the right to serve as council president. 8/ See In the Matter of Cty. of Camden and Registered Prof. Nursing Unit #1 and Camden Council #10, NJCSA, D.R. No. 81- 3, 6 NJPER 415 ( & 11209 1980) where the Director of Representation found that the president of Council #10 DiFante failed to provide responsible representation and acted in an arbitrary manner in her handling of grievances and representation of employees. 9/ The Commission has long held that the utilization of arbitration is to be encouraged and the Commission will defer to arbitration in the proper instance. Docket No. CI-80-3-32 Camden County Board of Freeholders (Public Employer) Date: By: This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced or covered by any other material. If employees have any question concerning this Notice or compliance with its provisions, they may communicate directly with the Public Employment Relations Commission, 495 West State Street, PO Box 429, Trenton, NJ 08625-0429 (609) 984-7372 APPENDIX A A @ ***** End of HE 83-13 *****