H.E. No. 82-29

Synopsis:

A Hearing Examiner recommends that the Public Employment Relations Commission find that the Respondent Board violated Subsection 5.4(a)(1) and (4) of the New Jersey Employer-Employee Relations Act when it demoted Albert Booth from the position of Maintenance-Groundsman to Custodian at his former salary on October 27, 1980 because the Association had filed an Unfair Practice Charge on behalf of Booth. This is the first case where a Hearing Examiner has had occasion to recommend that the Commission find a violation of Subsection 5.4(a)(4) of the Act which, inter alia, prohibits discrimination against any employee because he has filed a complaint or given any information or testimony under the Act.

The Hearing Examiner also recommended that the Commission dismiss allegations that the Respondent Board violated Subsections 5.4(a)(3) and (5) of the Act. As to Section 5.4(a)(5), the Hearing Examiner found that the Respondent Board had not refused to negotiate in good faith when it prepared and submitted a letter to the Association representative granting Booth a promotion from Custodian to Maintenance-Groundsman at the 4th Step on the salary guide. The Association representative was clothed with apparent authority to bind the Association to such an agreement.

By way of remedy, the Hearing Examiner ordered that Booth be restored forthwith to his former position of Maintenance-Groundsman at the 5th Step and be made whole for all lost earnings since October 27, 1980 with interest at the rate of 8% per annum from that date.

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. 82-29, 8 NJPER 150 (¶13066 1982)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

09.113 09.132 09.662 72.590 72615 72.666

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 82-029.pdf
Appellate Division:
Supreme Court:

H.E. NO. 82-29 1. H.E. NO. 82-29 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of RANDOLPH TOWNSHIP BOARD OF EDUCATION, Respondent, -and- Docket No. CO-81-65-159 RANDOLPH EDUCATION ASSOCIATION, Charging Party. Appearances: For the Randolph Township Board of Education Schenck, Price, Smith & King, Esqs. (Robert M. Tosti, Esq.) For the Randolph Education Association Schneider, Cohen, Solomon & DiMarzio, Esqs. (Bruce D. Leder, 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 September 17, 1980, and amended on December 4, 1980, by the Randolph Education Association (hereinafter the A Charging Party @ or A Association @ ) alleging that the Randolph Township Board of Education (hereinafter the A Respondent @ or the A Board @ ) had 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 the Respondent, contrary to past practice, in having promoted Albert Booth from custodian to maintenance-groundsman, placed him on the fourth step of the salary guide rather than the ninth step of the salary guide for maintenance-groundsman, a lateral move on the salary guide, and thereafter, upon the filing of the Unfair Practice Charge on September 17, 1980, unilaterally reassigned Booth to his former position as custodian at his former salary, all of which was alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1), (3), (4) and (5) of the Act.1/ It appearing that the allegations of the Unfair Practice Charge, as amended, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on May 8, 1981. Pursuant to the Complaint and Notice of Hearing, after one adjournment, hearings were held on October 28 & 29, 1981 in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. The Charging Party waived oral argument and the Respondent argued orally. The parties filed post-hearing briefs by January 11, 1982. An Unfair Practice Charge, as amended, 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 oral argument of the Respondent and 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 Randolph Township Board of Education is a public employer within the meaning of the Act, as amended, and is subject to its provisions. 2. The Randolph Education Association is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions. 3. Albert Booth was hired as a custodian by the Board on December 9, 1972. His duties included cleaning, mowing lawns, snow removal and minor maintenance repairs. 4. On June 4, 1980 the Board posted a job vacancy for the position of Groundsman in the Maintenance Department. Under the date of June 5, 1980 Booth applied in writing for the position (R-1). The duties of Groundsman, which was a District-wide position, included additional maintenance, the lining of ballfields, the setting up of soccer nets and being present at all games. 5. The most recent collective negotiations agreement between the parties, effective July 1, 1979 through June 30, 1981 (J-1), provides in Article XVII that vacancies for promotional and non-promotional positions shall be publicized (posted) and that any employee who desires to apply for a vacancy shall submit his application in writing to the Superintendent. This was done by Booth under date of June 5, 1980 (R-1, supra). 6. On or about June 15, 1980 John E. Morse, the Board = s Business Administrator, called Booth to a meeting where Arch Hughson, the head of Maintenance was present. Morse and Hughson advised Booth that they were pleased that he had applied for the position. Morse then proceeded to explain certain complications, namely, that due to a budget problem Booth would have to start at Step 4 on the guide at a salary of $12,791 per annum for Maintenance Groundsman. Booth at that time was at Step 8 for Custodian and was receiving an annual salary of $10,649. See J- 1, pp. 41, 42. Booth stated that he wanted to move laterally from Custodian to Maintenance, namely, from Step 8 on Custodian to Step 9 on Maintenance where his salary would be $15,626. In response, Morse explained that there was a problem with the request by Booth inasmuch as David Pfau was moved laterally across the salary guide from Custodian to Maintenance because of his prior five years = experience in maintenance work. See Board minutes of April 17, 1980; CP-2. The meeting concluded with Morse agreeing to prepare a document, which would reflect a salary increase for Booth, and said that a subsequent meeting would be scheduled where Booth should have an Association representative with him. 7. On June 27, 1980 Morse summoned Booth to a meeting with respect to his requested promotion to Maintenance Groundsman. At Booth = s request an Association representative, Euthalia M. Karlos, the Acting Grievance Chairman, came to the meeting on behalf of Booth and the Association. Morse presented to Booth and Karlos a letter agreement (CP-1) wherein Booth agreed to be transferred from the 8th Step on the Custodian salary guide to the 4th Step on the salary guide for Maintenance Groundsman at a salary of $12,791, effective July 1, 1980. This meant that Booth would be receiving an additional $555 per year. The agreement (CP-1) also provided that this action was taken with full knowledge of all parties and A ...will not be grievable at any time in the future... @ Morse stated that Booth could only receive the promotion if he signed the document and Booth did so, as did Morse. However, Karlos refused to sign the document because she was only appearing as a A representative @ of the Association and felt that she did not have authority to sign.2/ 8. Booth assumed the duties of Maintenance Groundsman as of July 1, 1980 and was paid at the salary fixed by the June 27, 1980 agreement (CP-1), namely, the 4th Step on the Maintenance salary guide: $12,791 per year. 9. Under date of September 17, 1980 the Association filed the instant Unfair Practice Charge wherein the Association sought to have Booth placed on the 9th Step of the salary guide for Maintenance at an annual salary of $15,626. 10. Under date of October 22, 1980 Matthew Wainer, the Board = s Superintendent, sent a letter to Booth (CP-3), which advised him that the Board had been notified of the filing of the instant Unfair Practice Charge and that when the Board entered into the agreement of June 27, 1980 (CP-1) it was not aware that it would be cited for committing an unfair practice. The Superintendent then said that since Booth and the Association were now contending that the June 27, 1980 agreement was not valid he, the Superintendent, would recommend that the Board cancel the agreement at its next meeting. The Superintendent then advised Booth that he was to be reassigned to his former position as Custodian effective October 27, 1980 at his prior salary of $12,336 per annum.3/ 11. Morse testified credibly that there had never been a prior instance of a lateral transfer of Custodian to Maintenance Groundsman except for Pfau on April 17, 1980 and that this was based on Pfau = s prior experience for the Maintenance Groundsman position. Morse also testified that if the same treatment had been accorded to Booth then Booth would have been earning more than Pfau, which the Board could not tolerate. 12. The Association = s witnesses, Karlos and Elias, testified without contradiction regarding two instances of lateral transfers in the secretary category, namely, a Rosalyn Anderson sometime within the past ten years and a Joanne Kenney in June 1978. 13. Subsequent to Booth = s re-assignment from Maintenance- Groundsman to Custodian on October 27, 1980 two vacancies occurred for Maintenance-Groundsman but Booth was rejected on each occasion due to the pendency of the instant Unfair Practice Charge. THE ISSUES 1. Did the Respondent Board violate Subsections (a)(1) and (5) of the Act on June 27, 1980 by preparing and submitting for signature a letter agreement (CP-1), which promoted Albert Booth to the 4th Step on the salar guide for Maintenance-Groundsman at a salary of $12,791, effective July 1, 1980, under the circumstances of Booth having signed CP-1 on June 27, 1980 and Euthalia M. Karlos, the Acting Grievance Chairman of the Association, having signed CP-1 on July 8, 1980, i.e., did Karlos have apparent authority to bind the Association? 2. Did the Respondent Board violate Subsections (a)(1) and (4) of the Act when the Board = s Superintendent, Matthew Wainer, on October 22, 1980 sent a letter to Booth (CP-3), which advised Booth in substance that, due to the filing of the instant Unfair Practice Charge, he was being re-assigned to his former position as Custodian at his prior salary inasmuch as Booth and the Association were not contending that the June 27, 1980 letter agreement (CP-1) was not valid? 3. Was any evidence adduced by the Charging Party that the Respondent Board violated Subsection (a)(3) of the Act?4/ DISCUSSION AND ANALYSIS The Respondent Board Did Not Violate Subsections (a)(1) And (5) Of The Act When It Submitted A Letter Agreement Promoting Albert Booth to Euthalia M. Karlos, The Acting Grievance Chairman Of The Association, On June 27, 1980, Which Karlos Signed On July 8, 1980, For The Reason That Karlos Was Vested With Apparent Authority To Bind The Association The Hearing Examiner finds and concludes that the Respondent Board did not violate Subsections (a)(1) and (5) of the Act on June 27, 1980 when it prepared and submitted for signature a letter agreement (CP-1) promoting Albert Booth to the 4th Step on the salary guide for Maintenance-Groundsman, effective July 1, 1980, in view of Booth having signed the agreement on June 27, 1980 and Euthalia M. Karlos, the Acting Grievance Chairman of the Association, having signed CP-1 on July 8, 1980, for the reason that Karlos on July 8, 1980 was vested with apparent authority to bind the Association. This conclusion with respect to apparent authority is supported in the record and is set forth in Finding of Fact No. 7, footnote 2, supra. To recapitulate, Karlos refused to sign CP-1 on June 27, 1980 because she was only appearing as A representative @ of the Association and felt that she did not have authority to sign the document. However, notwithstanding that her status did not change, she signed CP-1 on July 8, 1980, after having spoken with the President of the Association, Joy Elias, and John Davis, the UniServ Representative of the NJEA. According to Elias, Davis had told her that she could not sign CP-1 because, as President of the Association, she could not waive its rights. However, On July 7, 1980 Elias spoke to Davis and they agreed that Karlos could sign the agreement, with Davis stating that he would call Karlos and so advised her. Thereafter, although Elias knew that Karlos had signed the letter agreement (CP-1), Elias took no steps to rescind the authority of Karlos to have signed the agreement on July 8, 1980. Although it is not of great weight, Booth also signed CP-1 individually and testified that he had spoken to Davis prior to June 27, 1980 and Davis had said Booth = s signing was up to him. The definitive statement by the Commission on apparent authority is East Brunswick Board of Education, P.E.R.C. No. 77- 6, 2 NJPER 279 (1976), which expanded upon an earlier Commission decision in Bergenfield Board of Education, P.E.R.C. No. 90, 1 NJPER 44 (1975). Relying on court precedent, the Commission in East Brunswick said that: The test which has been applied by the courts in determining whether apparent authority existed as to a third party who had transacted business with an agent, is whether the principal has, by his voluntary act, placed the agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business involved, is justified in presuming that such agent has the authority to perform the particular act in question. While all authority must derive from the principal, apparent authority may derive from a principal = s adoption of or acquiescence in similar acts done on other occasions by an agent. Acquiescence by a principal in an extension of the authority he gave an agent may be sufficient to create an appearance of authority beyond that actually given said agent... (2 NJPER at 281) In its decision in East Brunswick the Commission noted that no qualifications were ever placed upon the authority of the Board = s negotiating team to conclude an agreement. Further, there was no writing that limited the authority of either negotiating team, or which called for final ratification by the parties themselves. The Commission held that Board = s negotiators were clothed with apparent authority to bind the Board to the terms and conditions of a collective negotiations agreement, thereby obviating the necessity for ratification of the agreement by the Board. Applying the East Brunswick test to the instant case it is clear to the Hearing Examiner that Karlos was vested with apparent authority when she executed CP-1 on July 8, 1980 as A R.E.A. Representative. @ As noted above, she had spoken with both Elias and Davis prior to executing CP-1. Further, Elias took no steps after July 8, 1980 to rescind Karlos = authority. The Board representatives were entitled to rely on the apparent authority of Karlos by her the signing CP-1 on July 8, 1980. Therefore, CP-1 became binding upon the Association and a Subsection (a)(5) alleged violation of the Act cannot be sustained. Additionally, the Hearing Examiner notes that the letter agreement of June 27, 1980 (CP-1) does not conflict with any of the provisions of the collective negotiations agreement then in effect (J-1), specifically, Article XV, Voluntary Transfers And Assignments; Article XVII, Promotions; and Article XXXIII, E, which provides that individual contracts must be consistent with and subordinate to the provisions of the agreement. Finally, the Charging Party contents that Booth = s promotion, as set forth in CP-1, is a violation of the past practice on lateral transfers. Even if such a past practice had been conclusively demonstrated, which it was not, the execution of CP- 1 by Karlos, supra, forecloses further consideration of the past practice argument. Accordingly, the Hearing Examiner will recommend dismissal of the Subsection (a)(1) and (5) allegations. The Respondent Board Violated Subsections (a)(1) And (4) Of The Act When Its Superintendent On October 22, 1980 Sent A Letter To Booth Advising Him That Due To The Filing Of the Instant Unfair Practice Charge He Was Being Reassigned To His Former Position As Custodian Since Booth And The Association Were Now Contending That CP-1 Was Not Valid The Hearing Examiner finds and concludes that the Respondent Board violated Subsections (a)(1) and (4) of the Act when Matthew Wainer, the Board = s Superintendent, sent a letter to Booth (CP-3) on October 22, 1980 advising in substance that, due to the filing of the instant Unfair Practice Charge, Booth was being reassigned to his former position as Custodian at his prior salary since Booth and the Association were now contending that the June 27, 1980 letter agreement (CP-1) was not valid. It is additionally noted that on two occasions when vacancies for Maintenance- Groundsman arose after October 1980 Booth was rejected in each instance due to the pendency of the instant Unfair Practice Charge (see Finding of Fact No. 13, supra). Subsection (a)(4) of the Act prohibits discrimination against any employee because he signed or filed an affidavit, petition or complaint or given any information or testimony under the Act. The Commission has never decided a case involving an alleged violation of Subsection (a)(4) of the Act. Accordingly, the Hearing Examiner, in accordance with the directive of the New Jersey Supreme Court in two cases,5/ will refer to the case law of the National Labor Relations Board for precedent in this area. The National Labor Relations Act (NLRA) in Section 8(a)(4) has a like provision for preventing discrimination against employees who have filed charges or given testimony under the NLRA. The NLRB has decided a number of cases involving violations of Section 8(a)(4), two of which are sufficient for citation here: Memphis Furniture Mfg. Co., 232 NLRB No. 164, 96 LRRM 1396 (1977) and Great Falls White Truck Co., 186 NLRB No. 117, 75 LRRM 1540 (1970). In each of these cases a violation of the NLRB was predicated in whole or in part on the fact that individual employees had filed unfair labor practice charges with the NLRB and were thereafter discriminated against. The Hearing Examiner notes that there is no distinction to be made by the fact that Booth did not sign the Unfair Practice Charge in the instant case. He was the sole subject of the Charge in clear and precise terms and is entitled to the protection of Subsection (a)(4) of the Act, notwithstanding that the Association is designated as the Charging Party. Thus, the Hearing Examiner, relying on NLRB precedent, finds an adequate legal basis for concluding that the Respondent Board violated Subsection (a)(4) of the Act by the conduct of its Superintendent in writing the letter of October 22, 1980, and thereafter transferring Booth to his former position of Custodian at his prior salary, effective October 27, 1980. The Hearing Examiner will, therefore, recommend an appropriate make whole remedy. * * * Upon the foregoing, and upon the entire record in this case, the Hearing Examiner makes the following: CONCLUSIONS OF LAW 1. The Respondent Board violated N.J.S.A. 34:13A-5.4(a)(1) and (4) when its Superintendent on October 22, 1980 sent a letter to Albert Booth advising the latter that he was being reassigned to his former position as Custodian at his prior salary, effective October 27, 1980, due to the filing of the instant Unfair Practice Charge. 2. The Respondent Board did not violate N.J.S.A. 34:13A- 5.4(a)(1) and (5) on June 27, 1980 by preparing and submitting for signature a letter agreement (CP-1), which promoted Albert Booth to the 4th Step on the salary guide for Maintenance- Groundsman at a salary of $12,791, effective July 1, 1980, under the circumstances of Euthalia M. Karlos, the Acting Grievance Chairman of the Association, having been vested with apparent authority to bind the Association when she signed CP-1 on July 8, 1980. 3. The Respondent Board did not violate N.J.S.A. 34:13A- 5.4(a)(3) by its conduct herein. RECOMMENDED ORDER The Hearing Examiner recommends that the Commission ORDER: A. That the Respondent Board 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 demoting employees such as Albert Booth with loss of pay because the Randolph Education Association filed an Unfair Practice Charge on his behalf. 2. Discharging or otherwise discriminating against any employee because he has signed or filed an affidavit, petition or complaint or given any information or testimony under the Act, particularly, by demoting employees such as Albert Booth with loss of pay because the Randolph Education Association filed an Unfair Practice Charge on his behalf. B. That the Respondent take the following affirmative action: 1. Forthwith restore Albert Booth to his former position of Maintenance-Groundsman at the 5th Step of the Custodian and Maintenance Guide and thereafter make him whole for lost earnings from October 27, 1980 to date, namely, make payment to Booth at the rate of $555 per annum from October 27, 1980 through June 30, 1981, and thereafter at the rate reflecting the difference between Booth = s salary as 5th Step Custodian and the 5th Step for Maintenance Groundsman on the salary guide for 1981- 82, together with interest at the rate of 8% per annum from October 27, 1980.6/ 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 for at least sixty (60) consecutive days thereafter. 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 that Respondent Board has taken to comply herewith. C. That the N.J.S.A. 34:13A-5.4(a)(3) and (5) allegations in the Complaint be dismissed in their entirety. /s/Alan R. Howe Hearing Examiner DATED: February 2, 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. (4) Discharging or otherwise discriminating against any employee because he has signed or filed an affidavit, petition 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. @ 2/ Notwithstanding that Karlos = status did not change, she signed the agreement (CP-1) on July 8, after having spoken with President of the Association, Joy Elias, and John Davis, the UniServ Representative of the NJEA. Davis had told Elias that she could not sign the agreement because, as President of the Association, she could not waive its rights. However, on July 7, 1980 Elias spoke to Davis and they agreed that Karlos could sign the agreement with Davis stating that he would call Karlos and so advise her. The Hearing Examiner notes that Elias knew that Karlos had signed the agreement and thereafter took no step to rescind the authority of Karlos to have signed the agreement on July 8, 1980. Finally, it is noted that Booth testified that he spoke to Davis prior to June 27, 1980 and Davis said that Booth = s signing was up to him. 3/ Thereafter on December 4, 1980, the Association amended its charge to allege additionally a violation by the Board of Subsection (a)(4) of the Act. 4/ The Hearing Examiner finds and concludes that no evidence constituting a Subsection (a)(3) violation was adduced and he will therefore recommend dismissal of this aspect of the Unfair Practice Charge. 5/ Lullo v. Int = l. Assn. of Fire Fighters, 55 N.J. 409 (1970) and Galloway Twp. Bd. of Ed. v. Galloway Twp. Assn. of Educational Secretaries, 78 N.J. 1, 9 (1978). 6/ See Salem County Bd. for Vocational Ed. v. McGonigle, App. Div. Docket No. A-3417-78 (929/80) and County of Cape May, P.E.R.C. No. 82-2, 7 NJPER 432 (1981). ***** End of HE 82-29 *****