It appearing that the allegations of the charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on September 29, 1977. ^2/

Under date of November 10, 1977 the Union filed a supplemental charge of unfair practices alleging that the City disciplined Firefighter Richard Winner on July 15, and August 25, 1977 for allegedly telephoning and appearing at the City = s Auditing Department in violation of a regulation of the Fire Department, which was alleged to be a violation of N.J.S.A . 34:13A-5.4(a)(1), (3) and (5) of the Act. Under date of November 14, 1977 the Union filed a second amended charge of unfair practices alleging that the City on October 5, 1977 instituted disciplinary proceedings against Firefighter Nicholas Sarapuchiello for visiting the Auditing Department of the City in alleged violation of a regulation of the Fire Department, which was alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1), (3) and (5) of the Act.

The City objected to the granting of the aforesaid two amendments to the original charge of unfair practices. The Hearing Examiner overruled the City = s objection and permitted the amendments by Order dated December 16, 1977.

Pursuant to the Complaint and Notice of Hearing, hearings were held on November 14, 1977 and January 9, 1978 in Newark, New Jersey, at which the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Post- hearing briefs were submitted by the parties on March 8, 1978.

An unfair practice charge, as twice amended, having been filed with the Commission, a question concerning alleged violations of the Act, as amended, and, hearing and after the consideration of briefs by the parties, the matter is appropriately before the Commission by its designated Hearing Examiner for a determination.

Upon the entire record, the Hearing Examiner makes the following:

2. The Hackensack Firefighters Local 2081, IAFF, AFL-CIO is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

3. Article III, Section 19-18 A(50) of the rules and regulations of the City = s Fire Department provides as follows:

All members of the Department, either when on call or when off duty and available , are subject to recall for emergency duty. During such recall periods, members may be excused from active duty only y permission of the officer in command and shall report for duty promptly upon notification of an emergency. (Emphasis supplied).

4. On August 15, 1977 at 2:08 a.m. there was a recall general alarm fire in the City.

5. Firefighter James B. Gleason was assigned to task of telephoning off-duty firefighters to report for duty for the general alarm fire. Gleason placed program cards for each firefighter into a special telephone, which automatically dialed the number. Gleason made 30 to 40 such calls, one of these being the telephone number of Nicholas Sarapuchiello. Gleason testified that a woman answered the phone and said A Okay @ when asked to have A Nick @ report. Sarapuchiello did not report and was the only firefighter who was reached by telephone who did not report.

6. Sarapuchiello testified that August 15, 1977 he was living alone, that there was no woman in the home, and that he was home and was not on recall.

7. Under date of August 19, 1977 a preliminary notice of disciplinary action was served upon Sarapuchiello for having failed to respond to the recall general alarm fire of August 15, 1977, which was alleged to be violation, inter alia, of subsection 50, supra , of the rules and regulations of the Fire Department. After a departmental hearing Sarapuchiello was suspended for two days without pay.

8. Firefighters Anthony Martino, Martin Corsano and Paul Ianuale were called as witnesses for the Union.

Martino testified that on August 15, 1977 he was home in bed and received no telephone call. The recall roster (R-5) indicates A NA @ for Martino, meaning A no answer @ .

Corsano testified that he was out of town on August 15, 1977. The recall roster shows A out of town @ for Corsano.

Ianuale testified that he was off duty at home on August 15, 1977 and was never called. The recall roster shows A NA @ for Ianuale.

9. Martino, Corsano and Ianuale were not disciplined for failure to respond to the recall general alarm fire on August 15, 1977.

10. Under date of July 12, 1974, the Chief of the Fire Department, Charles H. Jones, issued Special Order No. 25, which provides as follows:

Effective immediately, no member of the Fire Department will call or visit the Auditing Department.

All matters will be handled through the Fire Department front office.

Since a previous memo to this effect has been ignored, a breach of this Special Order will be considered a punishable offense.

The above Special Order No. 25 was directed to be posted on all bulletin boards and was so posted for some period of time on and after the date of issuance.

11. The following members of the Fire Department testified uniformly that they visited the Auditing Department without the requisite permission required by Special Order No. 25 on and after July 12, 1974 and were never disciplined for this infraction: Robert Berkanish (one visit), William Krejsa (six visits), and Richard Borys (one visit). In each instance these individuals made inquiries at the Auditing Department regarding pension loans for themselves.

12. Under date of July 15, 1977, Firefighter Richard Winner, who is also Secretary of the Union, was served with preliminary notice of disciplinary action for having made a telephone call to the Auditing Department on July 7, 1977 in alleged violation of Special Order No. 25. Winner testified that he made the telephone call to the Controller, James LaCava, on behalf of Firefighter Ronald Freeman in connection with an alleged insurance problem which Freeman had discussed with Winner prior to the telephone call. ^3/

13. After a departmental hearing, Winner was suspended for three days without pay by the City for this infraction.

14. Under date of August 25, 1977, a preliminary notice of disciplinary action was issued against Winner for violating Special Order No. 25 on August 19, 1977 when he allegedly visited the Auditing Department without permission.

15. Winner testified that he did not visit the Auditing Department on that date, but merely accompanied Sarapuchiello, who did visit the Auditing Department. The Hearing Examiner credits the testimony of Winner that he did not visit the Auditing Department as alleged. Winner was suspended a second time for four days for this alleged violation of Special Order No. 25 without pay.

16. Under date of August 26, 1977, a preliminary notice of disciplinary action was issued against Sarapuchiello for visiting the Auditing Department on behalf of Winner on August 19, 1977 in alleged violation of Special Order No. 25.

17. After a departmental hearing, Sarapuchiello was suspended for one day without pay by the City for this infraction.

18. Sarapuchiello testified that he again visited the Auditing Department on September 30, 1977 without permission on behalf of himself. After a departmental hearing, Sarapuchiello was suspended without pay. ^4/

19. On each occasion that Sarapuchiello appeared at the Auditing Department on behalf of Winner or himself, Sarapuchiello was President of the Union.

20. The Assistant Controller, Robert P. Bogle, testified that employees in the Auditing Department had been instructed to A report @ any employees who telephoned or appeared at the Auditing Department without permission. He knew of no firefighter who had ever been so A reported @ except Sarapuchiello and Winner.

21. One of the City = s defenses to the charges of unfair practices is the provision in the contract for arbitration, which has specific preliminary time limits, all of which had lapsed by the dates of hearing. At the hearing on January 9, 1978, the Hearing Examiner asked Counsel for the City whether it would waive its time limits defense to arbitrability of the instant subject matter. Counsel for the City replied that the City would not waive any defenses regarding arbitrability.

2. Was Richard Winner, as Secretary of the Union, engaging in a protected activity when he telephoned the Auditing Department on behalf of Ronald Freeman, and was his subsequent discipline a violation of the Act?

3. Was Nicholas Sarapuchiello, as President of the Union, engaging in a protected activity when he visited the office of the Auditing Department separately on behalf of Winner and himself, and was his subsequent discipline a violation of the Act?

4. Were Sarapuchiello and Winner the subject of disparate and discriminatory treatment by the City in having been disciplined for telephoning and/or appearing at the Auditing Department? If so, was this a violation of the Act?

For failing to Respond to a Recall
General Alarm Fire on August 15, 1977

Even if the Hearing Examiner should find that Sarapuchiello was home alone and was never telephoned to report to duty on August 15, 1977, it does not follow that because Sarapuchiello was disciplined for alleged failure not to report there was a violation of the Act. The Hearing Examiner is not persuaded by the record that Sarapuchiello was disciplined because he was President of the Union. The Union = s witnesses on disparate treatment^{5 /} on this issue may well have persuaded an arbitrator that Sarapuchiello was disciplined without just cause . This, does not, in and of itself, permit the Hearing Examiner to draw the inference that Sarapuchiello was disciplined because he was President of the Union. ^6/

There was competent evidence introduced by the City that Sarapuchiello was telephoned to report for duty on August 15, 1977. The evidence also indicated that three firefighters were not disciplined, namely Martino, Corsano and Ianuale. However, they were not disciplined because the recall roster (R-5) showed that there was A no answer @ in the cases of Martino and Ianuale, and Corsano was noted as A out of town @ . Notwithstanding that Martino and Ianuale testified that they were home on August 15, 1977, the objective facts before the Chief of the Fire Department at the time of his evaluation were that the recall roster showed that there was A no answer @ when they telephoned. The recall roster also showed that Corsano was A out of town @ . Thus, the Chief had before him objective evidence, uncontradicted at that point, that two firefighters did A not answer @ and that the third was A out of town @ . Accordingly, these three firefighters were not disciplined for failure to report. The same recall roster also indicated to the Chief of the Fire Department that Sarapuchiello had been contracted by telephone but did not report.

Sarapuchiello, and the Union on his behalf, have failed to prove by a preponderance of the evidence that Sarapuchiello was disciplined wholly or in part because he was the President of the Union on August 15, 1977. Further, Sarapuchiello has failed to show that he was engaged in any protected activity on August 15, 1977, which would have insulated him from discipline for failure to respond to a recall general alarm fire.

Thus, the City did not violate the Act when it disciplined Sarapuchiello for his failure to have responded to a recall general alarm fire where the City = s records showed that Sarapuchiello was the only firefighter, who was reached by telephone, who did not respond.

Sarapuchiello and Winner were engaged
in Protected Activity When They

Visited and/or Telephoned the Office
of the Auditing Department of the City
in Their Capacity as Union Officers
For Which They Were Disciplined in
Violation of the Act

The Hearing Examiner concludes that Sarapuchiello and Winner were acting in a representative capacity when they respectively visited and telephoned the office of the Auditing Department of the City on the dates in question. Sarapuchiello testified credibly that he visited the Auditing Department on behalf of Winner, who had a complaint regarding the pay he received in connection with his earlier three-day suspension. Sarapuchiello also made a visit to the Auditing Department in connection with his own pay. Winner likewise testified credibly that he telephoned the office of the Auditing Department on behalf of Ronald Freeman in connection with an insurance problem which Freeman had. There can be no dispute but that a union officer, or shop steward, as the case may be, is engaging in protected activity when he represents an employee on a grievance or problem involving wages, hours or conditions of employment. ^7/

The Hearing Examiner also finds that there was disparate treatment, and therefore unlawful discrimination, with respect to Sarapuchiello and Winner, in the matter of visiting and/or telephoning the office of the Auditing Department of the City. Three employees of the Fire Department testified without contradiction that they visited the Auditing Department in connection with pension loans and were never disciplined for infraction of Special Order No. 25.

The Assistant Controller, Robert P. Bogle, testified that employees in the Auditing Department had been instructed to A report @ any employee who visited or telephoned the Auditing Department without permission. In the case of the three employees of the Fire Department referred to above, their visits were never reported. Bogle testified that only Sarapuchiello and Winner have been A reported @ . Thus, the evidence shows clearly that there was disparate treatment in the application of Special Order No. 25 with respect to Sarapuchiello and Winner.

On this record the Hearing Examiner must conclude that the City, in enforcing Special Order No. 25, discriminated against Sarapuchiello and Winner in the exercise by them of rights protected by the Act, namely the representation of employees in connection with grievances over terms and conditions of employment. ^8/

The City = s Defense of Deferral
to Arbitration Is Rejected

The City has advanced as an affirmative defense the fact that the contract provides for arbitration and that the Commission should defer. This defense is rejected in view of the City = s refusal at the hearing to waive its defense of arbitrability in view of the fact that the time limits for arbitration have lapsed.

It is well settled that P.E.R.C. will not defer to arbitration where deferral would be a futile act. Hudson County Board of Chosen Freeholders, P.E.R.C. No. 78-48, 4 NJPER ___ (1978).

2. The City violated subsections (a)(1) and (3) of the Act when it suspended Nicholas Sarapuchiello and Richard Winner for engaging in the protected activity of representing employees on grievances with respect to terms and conditions of employment by having respectively visited and telephoned the office of the Auditing Department of the City on behalf of employees.

3. Richard Winner never, in fact, visited the office of the Auditing Department and should not have been suspended for allegedly having done so.

4. The City has violated the provisions of N.J.S.A . 34:13A-5.4(a)(1) and (3) of the Act. However, the City has not violated N.J.S.A. 34:13A-5.4(a)(5) of the Act.

A. Cease and desist from:

1. Interfering with, restraining or coercing its employees in the exercise of the rights guaranteed to them by the Act by refraining from disciplining employees, including Nicholas Sarapuchiello and Richard Winner, for engaging in the protected activity of representing employees in connection with grievances with respect to terms and conditions of employment.

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.

B. Take the following affirmative action:

1. Make whole Nicholas Sarapuchiello for the loss of wages suffered by him as a result of the disciplinary suspensions for visiting the Auditing Department on behalf of Richard Winner and himself.

2. Make whole Richard Winner for the loss of wages suffered by him as a result of the disciplinary suspensions for telephoning the Auditing Department on behalf of Ronald Freeman and also for allegedly visiting the Auditing Department with Nicholas Sarapuchiello.

3. Post at Fire Department Headquarters, in a conspicuous place, 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 by the City immediately upon receipt thereof, after being signed by the City = s representative, and shall be maintained by it for a period of at least sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps should be taken by the city to insure that such notices are not altered, defaced or covered by other material.

4. Notify the Director of Unfair Practices within twenty (20) days of receipt of this order what steps the City has taken to comply herewith.

C. It is further recommended that the Commission order those portions of the Complaint which charge the City with violating section 5.4(a)(5) of the Act be dismissed in their entirety.

D. It is further recommended that the Commission order that portion of the Complaint which charges the City with violating section 5.4(a)(1), (3) and (5) with respect to the discipline of Nicholas Sarapuchiello for failure to respond to the recall general alarm on August 15, 1977 be dismissed in its entirety.

_____________________________

Alan R. Howe
Hearing Examiner

DATED: March 16, 1978
Trenton, New Jersey
1/ These subsections prohibit 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. (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/ Immediately prior to the issuance of the Complaint and Notice of Hearing, Counsel for the Union withdrew paragraphs 1, 2, 3, 4 and 6 of the charge of unfair practices filed September 1, 1977. This left only paragraph 5 operative.
3/ Winner never filed a formal written grievance on behalf of Freeman and the Hearing Examiner finds that Winner was under no contractual obligation to do so before telephoning the Auditing Department.
4/ The record does not indicate the length of the suspension.
5/ Martino, Corsano and Ianuale.
6/ It is also noted that there has been no showing that Sarapuchiello was disciplined for engaging in any activity protected by the Act.
7/ In accordance with Lullo v. International Ass = n. of Firefighters, 55 N.J . 409 (1970), see, for example, the following decisions of the National Labor Relations Board and the courts: Chatham Mfg. Co., Inc., 221 NLRB No. 114, 90 LRRM 1577 (1975); May Dept. Stores Co., 220 NLRB No. 168, 90 LRRM 1444 (1975); Morris-Knudsen Co., Inc., 213 NLRB No. 48,87 LRRM 1655 (1974); Quality Mfg. Co., 195 NLRB No. 197, 79 LRRM 1269 (1972); NLRB v. R.W. Little, Inc., ___ F. 2d ___, 85 LRRM 2921 (9th Cir. 1974); NLRB v. Quality Mfg. Co., 481 F .2d 1018, 83 LRRM 2817 (4th Cir. 1973).
8/ Haddonfield Borough Board of Education, P.E.R.C. No. 77-31, 3 NJPER 71 (1977) and City of Hackensack, P.E.R.C. No. 77- 49, 3 NJPER 143 (1977), appeal pending, App. Div. Docket No. A-2546-76.