H.E. No. 82-22

Synopsis:

A Hearing Examiner recommends that the Public Employment Relations Commission find that the City violated subsections 5.4(a)(1) and (5) of the New Jersey Employer-Employee Relations Act when its Fire Director unilaterally issued a General Order on July 15, 1980, which stated that "Because of the critical manpower shortage no holidays or accumulated time off will be granted until further notice." notwithstanding that the collective neogtiations agreement between the parties provided for eleven enumerated paid holidays. However, the Hearing Examiner recommended that no violation be found as to the Fire Director's order of August 25, 1980 stating that any member of the Fire Department who posted a sign "in relation to Fire House closing anywhere shall be suspended" and on the same day suspended Robert Garry, the President of the Charging Party, for two-days as a result of having posted such a sign. Additionally, the Hearing Examiner found no violation of the Act when the Mayor on August 5, 1980 sent a letter to the members of Council requesting the convening of a Grand Jury to investigate, inter alia, job actions by employees of the Fire Department and the "overtime problem."

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. 82-22, 8 NJPER 19 (¶13008 1981)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

72.311 72.326 72.361 72.365 43.15 43.98 72.319 72.342 72.366

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 82-022.pdf
Appellate Division:
Supreme Court:

H.E. NO. 82-22 1. H.E. NO. 82-22 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. 82-22 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CITY OF ELIZABETH, Respondent, -and- Docket Nos. CO-81-57-28 CO-81-39-57 & CO-81-76-58 FIREMEN = S MUTUAL BENEVOLENT ASSOCIATION, BRANCH NO. 9 AND ROBERT GARRY, Charging Party. Appearances: For the City of Elizabeth Marvin Lehman, Esq. For the Charging Party Goldberger, Siegel & Finn, Esqs. (Howard A. Goldberger, Esq.) HEARING EXAMINER = S RECOMMENDED REPORT AND DECISION Three Unfair Practice Charges were filed with the Public Employment Relations Commission (hereinafter the A Commission @ ) on the following dates: August 13, 1980 (No. CO-81-39-57); September 9, 1980 (No. CO-81-57-28); and September 19, 1980 (No. CO-81-76-58) by the Firemen = s Mutual Benevolent Association, Branch No. 9 (hereinafter the A Charging Party @ or the A FMBA @ ) alleging that the City of Elizabeth (hereinafter the A Respondent @ or the A City @ ) 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: (No. CO-81-39-57) the Respondent reduced the normal complement of firemen from 275 to 236 for alleged reasons of economy without notice to or negotiations with the Charging Party and that the Respondent issued a General Order, which terminated all A holidays or accumulated time off...until further notice @ without notice to or negotiations with the Charging Party and that the Respondent = s Mayor attempted to threaten and coerce firemen represented by the Charging Party by sending a letter to City Council under the date of August 5, 1980; (No. CO-81-57-28) the Respondent on August 25, 1980 suspended the President of the Charging Party, Robert Garry, for having posted a factually accurate notice of the closing of a particular Fire Department facility on private property adjacent to the said Fire Department facility, notwithstanding that the suspension was immediately vacated and Garry suffered no loss of pay; (No. CO-81-76-58) the Respondent A castigated @ Anthony Valvano, a fireman, for having posted a sign on his residential property on September 7, 1980 protesting the action of the Fire Department in reducing fire fighting services to the City of Elizabeth; all of which was alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1), (2), (3), (4) and (5) of the Act.1/ It appearing that the allegations of the Unfair Practice Charges, if true, may constitute unfair practices within the meaning of the Act, Complaints and Notices of Hearing were issued on September 24, 1980 and December 3, 1980. Pursuant to the Complaints and Notices of Hearing, hearings were held on September 24 & 25, 19812/ in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Both parties argued orally and the Respondent only filed a post-hearing brief by December 2, 1981. Unfair Practice Charges 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 and post-hearing brief of the City, 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 City of Elizabeth is a public employer within the meaning of the Act, as amended, and is subject to its provisions. 2. The Firemen = s Mutual Benevolent Association, Branch No. 9 is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions. 3. Robert Garry is a public employee within the meaning of the Act, as amended, and is subject to its provisions. 4. Garry has been employed in the City = s Fire Department for eighteen years. Prior to becoming President of the FMBA on June 19, 1980 he had been Vice-President of the FMBA for four years. 5. Approximately one week after Garry became President of the FMBA he sought a meeting with the City = s Mayor, Thomas G. Dunn, and when they subsequently met, Mayor Dunn said something to the effect that Garry should A cut @ his A crying, @ adding that he was A acting like the last guy, @ referring to the previous President of the FMBA, Donald Silvey. In a similar vein Mayor Dunn in September, 1980 declared that Garry was A persona non grata @ at a time when there were demonstrations outside of City Hall in response to the closing of certain fire houses. At or about that time the Mayor = s secretary said to William Neafsy, a Battalion Chief, that the Mayor would see anyone but Garry. 6. The foregoing indications of strain in the relationship between the Mayor and Garry occurred in the context of reductions in the number of firemen from 275 in June, 1980 to 235 in September, 1980 and the closing of certain fire houses with the resulting elimination of some Engine Companies and Rescue Squads. For example, the Fire Director, Joseph B. Sullivan, issued General Order No. JBS-9 on June 20, 1980, which stated that as of July 1, 1980, Engine Company No. 7 and Rescue Squad No. 1 would be out of service (CP-1, CP-4). 7. In response thereto, the FMBA organized several demonstrations and ran newspaper advertisements appealing to the public to put pressure upon City officials to restore manpower levels (see, for example, CP-2). Firemen posted signs where fire houses had been closed. 8. The fire house on Broad Street contained Engine Company No. 1, Rescue Squad No. 1, and Truck Company No. 1. As of August 25, 1980 Engine Company No. 1 and Rescue Squad No. 1 were closed while Truck Company No. 1 remained open. On August 25, 1980 the firemen of Engine Company No. 1 posted a sign at the fire house stating that Engine Company No. 1 and Rescue Squad No. 1 were closed. When Mayor Dunn learned of this he told Fire Director Sullivan that he wanted the sign out of the window immediately. Fire Director Sullivan telephoned Truck Company No. 1 and ordered that the sign be removed. 9. Shortly thereafter on the same day, August 25, 1980, Garry personally went to Engine Company No. 1 on Broad Street and made up a sign, the legend of which was that Engine Company No. 1 was closed and that any fires should be reported by going to the nearest fire box. Garry posted the sign on a privately owned building adjacent to the fire house and also on a bridge on the opposite side of the fire house, the purpose of which was to inform the public that no Engine Company was available at this location. 10. After Garry had posted the sign he immediately called City Hall and spoke to the City = s Business Administrator, Harry Frank, telling him that Engine Company No. 1 on Broad Street was closed. 11. Garry next went to that portion of the building occupied by Truck Company No. 1. In the meantime Fire Director Sullivan had appeared on the scene and removed the sign which Garry had posted on the adjoining private property. Sullivan said that he could not tolerate the posting of the sign and when Garry said that he would take the sign and re-post it Sullivan said: A If you do you = re suspended. @ When Garry re-posted the sign Sullivan suspended Garry for two days. The suspension was later vacated and Garry suffered no loss in pay (CP-3). 12. On the same day, August 25, 1980, Fire Director Sullivan issued an order, which was entered in a log at the fire house on Broad Street, and which stated that any member of the Fire Department who put up a sign A ...in relation to fire house closings anywhere shall be suspended @ (CP-7). 13. Article IX of the current collective negotiations agreement between the parties, effective January 1, 1980 through December 31, 1981, provides for 11 paid holidays (J-1, p. 12). 14. Under date of July 15, 1980, Fire Director Sullivan issued General Order-JBS No. 11 which stated: A Because of the critical manpower shortage no holidays or accumulated time off will be granted until further notice @ (CP-5). This action by the Fire Director was taken without notice to or negotiations with the Charging Party. 15. Garry acknowledged during cross-examination that while he was denied the opportunity to take off on two scheduled holidays provided for in the collective negotiations agreement he did not lose the days and was still eligible to take time off on other days when permitted to do so. There have been days off granted to other firemen in 1980 and 1981 since the issuance of Sullivan = s General Order of July 15, 1980 (CP-5, supra). 16. Under date of August 5, 1980, Mayor Dunn sent a letter to the members of City Council on the subject of the Fire Department, in which he defended the City against attacks made by firemen in connection with the reduction of manpower, and further indicating, inter alia, that he had requested the convening of a Grand Jury, which might investigate: (1) the respective roles of the City and the Fire Department; (2) job actions by employees of the Fire Department; and (3) the A overtime problem. @ Finally, the Mayor recommended the hiring of a consulting firm to study the operation of the Fire Department. See CP-6. THE ISSUES 1. Did the Respondent violate Subsections (a)(1) and (3) of the Act when the Fire Director issued an Order on August 25, 1980 stating that any member of the Fire Department who put up a sign A in relation to Fire House closings anywhere shall be suspended @ and on the same day suspended Robert Garry, the President of the Charging Party, for two days as a result of his having posted two signs on private property adjacent to a firehouse, which stated that Engine Company No. 1 was closed and that any fires should be reported by going to the nearest fire box? 2. Did the Respondent violate Subsections (a)(1) and (5) of the Act when the Fire Director on July 15, 1980 issued a General Order which stated A Because of the critical manpower shortage no holidays or accumulated time off will be granted until further notice, @ notwithstanding that the collective negotiations agreement between parties provided for eleven enumerated paid holidays? 3. Did the Respondent violate Subsections (a)(1) and (3) of the Act when the Mayor on August 5, 1980 sent a letter to the members of City Council in which, inter alia, the Mayor requested the convening of a Grand Jury, which might investigate: (1) the respective roles of the City and Fire Department, (2) job actions by employees in the fire Department, and (3) the A overtime problem @ ? DISCUSSION AND ANALYSIS The Respondent Did Not Violate Subsections (a)(1) and (3) Of The Act By The Fire Director = s Order Of August 25, 1980 And His Suspension On the Same Day Of Robert Garry, The President Of The Charging Party, As A Result Of His Having Posted Two Signs On Private Property Adjacent To A Fire House The Hearing Examiner finds and concludes that the Respondent = s conduct through its Fire Director of August 25, 1980 did not constitute an Unfair Practice under Subsections (a)(1) and (3) of the Act, or any other Subsection, notwithstanding that the Respondent = s conduct might have given rise to an appropriate civil action for possible violation of the First Amendment rights of Robert Garry.3/ At the hearing, the Hearing Examiner inquired of counsel for the Charging Party as to what A protected activity @ Garry was engaged in when he posted two signs on private property adjacent to the Fire House stating that Engine Company No. 1 was closed and that any fire should be reported by going to the nearest fire box. Garry = s insistence on doing so resulted in a two-day suspension, later vacated, for having violated the Fire Director = s Order of August 25, 1980 that any member of the Fire Department putting up a sign regarding closings anywhere would be suspended. The Charging Party has cited no Commission or Court precedent for finding that the activity of Garry was protected under the Act. Independent research has disclosed no Commission or Court precedent recognizing Garry = s conduct as protected activity, nor has resort to the private sector provided any analogous precedent there. It is not the function of an administrative agency, such as the Commission herein, to adjudicate Federal or State protected constitutional rights, notwithstanding that in a single case the Commission in Hunterdon Central High School Teachers = Association v. Hunterdon Central High School Board of Education, P.E.R.C. No. 80-4, 5 NJPER 289, affirmed 174 N.J. Super. 468 (App. Div. 1980), aff = d 86 N.J. 43 (1981), was required to apply First Amendment decisions of the United States Supreme Court in deciding a scope of negotiations issue involving a teacher = s request for a day off with pay for A religious leave. @ There the Commission held that a contract provision permitting a day off for the specific purpose of religious observance with pay was unconstitutional because it was a benefit that non-religious employees could never enjoy. Although not cited by the parties, the Hearing Examiner has considered the Commission = s decision in Laurel Springs Board of Education, P.E.R.C. No. 78-4, 3 NJPER 228 (1977), where the Charging Party, a teacher, as part of the protected activity in which she engaged, addressed the Board of Education at a public meeting regarding her views as to a transfer. The Commission made no reference to the exercise by the Charging Party of First Amendments rights in speaking at a public meeting but did decide that she was attempting to inform and convince the public on a labor relations issue, i.e., the involuntary transfer from one grade to another. Notwithstanding Laurel Springs, supra, the Hearing Examiner is not persuaded that addressing a Board of Education at a public meeting regarding an involuntary transfer is analogous to posting a sign on private property regarding a Fire House closing and directing the public to report fires at the nearest fire box. The instant case would be altogether different if Garry had appeared at a meeting of the City Council and protested the partial closing of a Fire House in order to inform the public of a safety issue, which would tangentially affect firemen who would be laid off as a result of the closing. Thus, the Hearing Examiner will recommend dismissal of this aspect of the charge involving the alleged violation of Subsections (a)(1) and (3) of the Act. The Respondent Did Violate Subsections (a)(1) And (5) Of The Act When The Fire Director On July 5, 1980 Issued A General Order Stating That Because Of The Critical Manpower Shortage No Holidays Or Accumulated Time Off Would Be Granted, Notwithstanding That The Agreement Between The Parties Provided For Eleven Enumerated Paid Holidays Admittedly, this aspect of the Unfair Practice Charge by the FMBA presents a close question. The Hearing Examiner finds and concludes that the Respondent violated Subsections (a)(1) and (5) of the Act when the Fire Director unilaterally issued a General Order on July 15, 1980 stating that because of a critical manpower shortage no holidays or accumulated time off would be granted until further notice. The parties had negotiated a collective agreement that provided for eleven enumerated paid holidays. In so holding, the Hearing Examiner is aware that no firemen, including Garry, have since been denied the opportunity to have been granted a day off in lieu of the enumerated holidays in the agreement. As authority for the Hearing Examiner = s conclusion, he cites City of Orange, P.E.R.C. No. 79-10, 4 NJPER 420 (1978), which was a case involving vacation schedules. There the employer was found to have violated the Act by unilaterally determining minimum manpower regarding vacations without negotiations with the public employee representative. The employer was ordered to reinstate the vacation scheduling system A ...to the extent that this system does not cause manpower levels to fall below the manning requirements established by the City... @ (4 NJPER at 421). So, too, in the instant case, the City should be ordered to rescind the July 15, 1980 General Order concerning holidays and accumulated time off to the extent that it does not cause the manpower level to drop below established requirements, pending negotiations with the Charging Party as to essential modifications in the provisions in the collective negotiations agreement regarding paid holidays. It is noted that the Commission was careful in City of Orange, supra, not to intrude upon the proper exercise of managerial prerogatives by the public employer. The same applies in the instant case. The Hearing Examiner will, therefore, recommend an appropriate order as to this aspect of the Unfair Practice Charge. The Respondent Did Not Violate Subsections (a)(1) And (3) Of The Act When The Mayor On August 5, 1980 Sent A Letter To The City Council Requesting The Convening Of A Grand Jury The Hearing Examiner finds and concludes that the Respondent did not violate Subsections (a)(1) and (3) of the Act when its Mayor on August 5, 1980 sent a letter to the members of City Council requesting the convening of a Grand Jury, which might investigate (1) the respective roles of the City and Fire Department, (2) job actions by employees of the Fire Department and (3) the A overtime problem. @ Plainly, the Mayor has wide latitude in communicating with members of City Council. While the mere fact that the Mayor recommended a Grand Jury investigation of the enumerated items above might suggest discriminating regarding terms and conditions of employment of members of the City = s Fire Department, the Commission would clearly be intruding upon the managerial prerogative of communication between the Mayor and City Council if a violation of the Act was held to have occurred by the Mayor = s communication of August 5, 1980. The Courts of this state have been most protective of the exercise by public employers of their managerial prerogatives. In the opinion of the Hearing Examiner, the instant case does not come close to affording a basis for finding a violation of the Act by the Mayor = s conduct herein. Accordingly, the Hearing Examiner will recommend dismissal of this aspect of the charge. * * * Upon the foregoing, and upon the entire record in this case, the Hearing Examiner makes the following: CONCLUSIONS OF LAW 1. The Respondent did not violate N.J.S.A. 34:13A- 5.4(a)(1) and (3) when the Fire Director issued an Order on August 25, 1980 stating that any member of the Fire Department who put up a sign A in relation to Fire House closings anywhere shall be suspended @ and on the same day suspended Robert Garry for two-days, later vacated, for posting such a sign. 2. The Respondent violated N.J.S.A. 34:13A-5.4(a)(1) and (5) when the Fire Director unilaterally on July 15, 1980 issued a General Order without negotiations with the FMBA stating that because of the critical manpower shortage no holidays or accumulated time off would be granted until further notice, notwithstanding that collective negotiations agreement provided for eleven enumerated paid holidays. 3. The Respondent did not violate N.J.S.A. 34:13A- 5.4(a)(1) and (3) when the Mayor on August 5, 1980 sent a letter to the members of City Council in which he requested the convening of a Grand Jury, which might investigate, inter alia, job actions by the employees of the Fire Department and A overtime problems. @ 4. The Respondent did not violate N.J.S.A. 34:13A- 5.4(a)(2) and (4) by its conduct herein. RECOMMENDED ORDER A. That the Respondent City cease and desist from: 1. Interfering with, restraining or coercing its employees in the rights guaranteed to them by the Act, particularly, by refusing to negotiate in good faith with Firemen = s Mutual Benevolent Association, Branch No. 9 regarding unilateral changes in the granting of paid holidays or accumulated time off. 2. Refusing to negotiate in good faith with the Firemen = s Mutual Benevolent Association, Branch No. 9 regarding unilateral changes in the granting of holidays or accumulated time off due to manpower or manning requirements. B. That the Respondent City take the following affirmative: 1. Upon demand negotiate in good faith with the Firemen = s Mutual Benevolent Association, Branch No. 9 concerning any changes to be made in the collectively negotiated agreement regarding paid holidays or accumulated time off. 2. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as A Appendix 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 Respondent = s authorized representative, shall be maintained by it for a period of at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent City 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 City has taken to comply herewith. C. That the allegations in the Complaint that the Respondent City violated N.J.S.A. 34:13A-5.4(a)(2) and (4) be dismissed in their entirety. /s/Alan R. Howe Hearing Examiner DATED: December 11, 1981 Trenton, New Jersey WE WILL NOT interfere with, restrain or coerce our employees in the rights guaranteed to them by the Act, particularly, by refusing to negotiate in good faith with Firemen = s Mutual Benevolent Association, Branch No. 9 regarding unilateral changes in the granting of paid holidays or accumulated time off. WE WILL NOT refuse to negotiate in good faith with the Firemen = s Mutual Benevolent Association, Branch No. 9 regarding changes in the granting of holidays or accumulated time off due to manpower or manning requirements. WE WILL upon demand negotiate in good faith with the Firemen = s Mutual Benevolent Association, Branch No. 9 concerning any changes to be made in the collectively negotiated agreement regarding paid holidays or accumulated time off. 1/ These Subsections prohibit public employers, their representatives or agents from: (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, 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/ The delay in bringing these matters to hearing was occasioned by intensive settlement efforts of the parties after the issuance of the Complaints and Notices of Hearing. Additionally, at the hearing the Charging Party withdrew Docket No. CO-81-76-58 regarding Valvano and also that portion of Docket No. CO-81-39-57 pertaining to the reduction in the number of firemen without notice to or negotiations with the Charging Party. 3/ See, for example, Gasparinetti v. Kerr, 568 F.2d 311 (3rd Cir. 1977) where a Newark police officer was successful in invalidating certain Police Department regulations as facially unconstitutional under the First Amendment thereby voiding his discipline. Docket No. City of Elizabeth (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 82-22 *****