H.E. No. 82-62

Synopsis:

It is recommended that the Commission find that the Borough of Highland Park committed an unfair practice when it transferred three employees in accordance with a newly initiated rotation system. The officers were active in the Highland Park PBA. It was found that although the rotation system was ordered in good faith by the new Borough Administrator, the Chief of Police misinterpreted the directives to institute this program. The Chief of Police, prior to this most recent order, was subject to pressure by councilpersons of the Borough to transfer these employees. This pressure was unlawfully motivated. It was recommended that the new rotation procedure be rescinded and if a new rotation procedure is implemented, this procedure must be free of any unlawful taint.

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. 82-62, 8 NJPER 415 (¶13190 1982)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

72.311 72.323 72.331 72.353

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 82-062.pdf
Appellate Division:
Supreme Court:

H.E. NO. 82-62 1. H.E. NO. 82-62 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of BOROUGH OF HIGHLAND PARK, Respondent, -and- Docket No. CO-81-311-12 HIGHLAND PARK PBA LOCAL NO. 64, INC., GREGORY KRONOWSKI, FRANK ATHERTON and PATRICK REAGAN, Charging Party. Appearances: For the Respondent Aron, Till & Salsberg, Esqs. (Richard M. Salsberg, Esq.) For the Charging Party Robert Bradley Blackman, Esq. HEARING EXAMINER = S RECOMMENDED REPORT AND DECISION On April 7, 1981, the Highland Park PBA Local No. 64 (PBA) brought an unfair practice charge against the Borough of Highland Park (Borough) alleging that the Borough violated N.J.S.A. 34:13A-5.4(a)(1), (2) and (3)1/ of the New Jersey Employer- Employee Relations Act (Act). It was specifically alleged that the Borough ordered a system of rotating patrolmen into the traffic bureau and detective division, thus removing Gregory Kronowski, president of the PBA, Frank Atherton, State Delegate of the PBA, and Patrick Reagan, secretary of the PBA, from positions they had held for a number of years. It was claimed this action was taken in retaliation for the exercise of protected rights under the Act. After an amendment to the charge on April 27, 1981, and 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 July 24, 1981. Pursuant to that Complaint and Notice of Hearing, hearings were held on October 5th and 6th in New Brunswick, New Jersey, before the undersigned, Edmund Gerber, at which time both parties were given an opportunity to present evidence, examine and cross- examine witnesses, argue orally and present briefs.2/ The police force of the Borough of Highland Park consists of approximately 28 men. In addition to the regular duty assignments of patrolmen, there are three bureaus: the Traffic Bureau, the Detective Bureau and the Juvenile Bureau. The latter two are closely aligned. Frank Atherton is a patrolman assigned to the Traffic Bureau and has been there since 1976. He has had extensive training in the investigation of accidents in order to carry out his duties with that division. Further the Traffic Division officers work a steady duty time Monday through Friday shift, whereas the officers in the patrol division work rotating shifts. Atherton testified that being assigned to the Traffic Division is considered a promotion by the other officers as well as himself. Atherton was the president of the PBA local until mid-1980 and he is currently serving as State PBA Delegate. Kronowski has been president of the PBA since mid-1980 and prior to that time served as a vice president. Kronowski was assigned to the Juvenile Aid Bureau in 1978. Contrary to the past history of the bureau, although he served for approximately three years in that position he never was promoted to the rank of detective but has remained a patrolman. Detectives make $1200 a year more than patrolmen. However, Kronowski was given a detective = s gold badge and the chief of police has made numerous requests to the Borough council to have Kronowski promoted to the rank of detective. Patrick Reagan has served with the Detective Bureau since December 1977. Like Kronowski, the chief has recommended that Reagan be made a detective but the Borough council has never acted upon that request. Reagan testified that he is an officer in the PBA although there is no evidence as to what his position truly was. All three officers testified as to the bad relationship between certain council members, the mayor and the PBA. There is also testimony as to poor relationships during negotiations. However, it is noted that the PBA and the Borough have successfully completed negotiations without the necessity of the use of interest arbitration. Three men specifically testified as to the bad relationship between PBA officers and Councilperson Dworeck. They testified that Dworeck had on several occasions threatened to have Atherton transferred because of the conduct of the PBA. On May 29, 1980, the Chief of Police, Angelo Arrisi, transferred Kronowski, Reagan and Atherton to the patrol divisions. The letter ordering the move concluded, A These moves I make with mixed emotions, fully realizing that I am taking manpower from key areas where they are badly needed. @ Copies of the letter were sent to Mayor Mulhollen and the council members. Atherton testified that prior to these transfers Arrisi advised him that the Borough council was requesting that he make changes within the police department but Arrisi assured Atherton that he was not going to allow the Borough Council to transfer within the police department and that Arrisi would fight the changes. Further, on May 6, 1980, Atherton read a prepared statement at a council meeting which was negative towards the council and the statement received coverage in the local newspapers. Shortly thereafter Arrisi informed Atherton and other officers the Borough Council was not pleased with their attendance at council meetings. Further at this same time, the PBA chose to endorse and support three rival candidates in their race against the council incumbents. The transfers, which were effective May 10, 1980, lasted until September 1, 1980, after the 1980-81 contract had been resolved and after the candidates supported by the PBA were elected. Both Officers Kronowski and Atherton testified that in late 1980 or early 1981 Chief Arrisi showed them a letter from former Councilperson Dworeck who had served as police commissioner. In that letter Dworeck stated that she would like to see the chief switch Atherton back to the patrol division. In November 1980 the town council had voted to grant Chief Arrisi and his captain a pay raise. Shortly thereafter, without Arrisi = s knowledge, the pay raise was rescinded and he did not receive his pay increase until after Kronowski, Atherton and Reagan were transferred for a second time. That second time was March 16, 1981, when Reagan, Kronowski and Atherton were all transferred out of their respective bureaus and three other patrolmen were transferred into those same positions. Chief Arrisi testified on behalf of the Borough. Arrisi made it clear that he did not approve of the transfers but in other respects he was not a forthright and candid witness. Many times he did not recall whether or not incidents happened and in general seemed to be upset and uncomfortable in testifying. He did mention how he received pressure from Mayor Mulhollen to discipline Atherton and Reagan for an automobile accident which occurred when they were pursuing a motorist who they had observed operating a vehicle in an unlawful manner. Arrisi had investigated the accident and found no improper conduct and refused to discipline the patrolmen. I am satisfied Arrisi was aware that the mayor and city council had a sense of dissatisfaction with Atherton, Reagan and Kronowski and that this dissatisfaction was unrelated to their performance as police officers. Arrisi had attempted to resist the pressures to transfer and take other actions against these men which he perceived to be interference from the Borough administration.3/ Further, on the basis of the testimony of Kronowski, Atherton and Reagan, I find that the pressure exerted by the mayor and council was motivated by their exercise of protected rights. See Laurel Springs Bd/Ed and Mary Becken, P.E.R.C. No. 78-4, 3 NJPER 228, where the Commission held that A it is the intent of the Act to protect public employees in their proper activities in support of their majority representative. This includes activities designed to inform the public of their view of a particular dispute or issue as well as their activities at the negotiating table. The transfers which were made effective in April 1981 were at the directive of the City Administrator Christine Meighan. Meighan has been the Borough Administrator since January 12, 1981. She testified that the transfers were solely her own idea. She had heard from some current councilmen, not to be confused with the ones that had been voted out of office, that morale was low on the police department. Further, three patrolmen had approached her and told her essentially the same thing. She testified that she had a friend who had served as a chief of police in another town. This individual had once talked to her about the advantage of having patrolmen rotate into various bureaus within the police department for the purposes of training. He felt this made better police officers and a better police department. After hearing these comments about the police department Meighan contacted this friend and discussed the possibility of instituting a similar program in Highland Park. She testified as to how the idea of the transfers came out of these conversations. They were completely her own idea and were unrelated to any past history of transfers at least within the police department. She also testified that the reason why Arrisi did not receive his announced raise was that the Borough Council had asked her to conduct evaluations of all department heads within the Borough and, after attempting to do so, she realized that she had no objective basis on which to conduct them. She believed that she needed a year on the job before she could accurately evaluate employees. Accordingly, the evaluation program was abandoned and all employees were given their raises after a several month delay. The Association made accusations that Meighan had become friends with former councilperson Dworeck with the inference that it was at Dworeck = s suggestion that Meighan instituted the transfer policy. Meighan admitted that after coming to work in Highland Park she had come to know Dworeck but maintained that Dworeck had not even discussed this issue with her and played no part in her decision to implement this policy. Meighan = s testimony was forthright and credible and I so credit it. What is significant was Meighan = s testimony that it was she who A asked for a rotating system to get the men into the bureaus, not to take any men out @ and she further testified she did not anticipate that people would have to be removed from bureaus in order to accommodate the patrolmen in the rotation program and left the mechanics and implementation completely up to the chief. Although Meighan = s actions were in good faith and were completely free of any unlawful taint, the chief had been under protracted pressure vis-a-vis Atherton, Reagan and Kronowski. It is evident to the undersigned that Arrisi interpreted Meighan = s order in the light of all the pressure he had received heretofore. He assumed that the order meant that he had to remove the three officers; that is, he made presumptions about the order that were not contained within the order. Arrisi interpreted the order the way that he did because of prior pressure and interference of the mayor and councilpersons over the past several years. This pressure had its roots in Atherton and Kronowski = s activities on behalf of the PBA. In effect, the execution fo the order became tainted. The Commission has adopted the National Labor Relations Board test for determining unlawful motivation in (a)(3) cases as enunciated in Wright Line, 251 NLRB No. 150, 105 LRRM 1169 (1980). The charging party must first make a prima facie showing sufficient to support the inference that the protected conduct was a A motivating factor @ in the employer = s decision. Once this is established the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of protected conduct. See, In the Matter of Madison Borough, P.E.R.C. No. 82-46, 8 NJPER ___ (1981); In re Borough of Stone Harbor, P.E.R.C. No. 82- 96, 8 NJPER ___ (1982); In re East Orange Public Library and Constance Taliaferro, 180 N.J. Super. 155, 163 (1981). Here the Association presented a prima facie case but the Borough did not demonstrate that the same action would have taken place in the absence of the prior pressure placed upon Arrisi.4/ Had Arrisi known that the order to implement a rotating assignment plan did not mean he had to remove the three officers, the implementation of the order might have been very different. Accordingly, I hereby recommend the Commission find that the Borough of Highland Park violated ' 5.4(a)(1) and (3) of the Act when the officers were transferred. In order to cure the taint I am recommending that the Commission order that the rotating assignment plan as it is currently constituted be rescinded. Arrisi now knows what the intent of the order was and accordingly may institute a new rotating patrolman program free of unlawful taint. The councilpersons who oppose the PBA are now out of office and the pressures to discriminate against the officers in question are now gone. Recommended Order The Hearing Examiner recommends that the Commission ORDER: A. That the Borough of Highland Park cease and desist from: 1. Interfering with, restraining or coercing its employees in the exercise of protected rights by transferring Atherton, Reagan and Kronowski out of their respective bureaus. 2. Discriminating against Atherton, Reagan and Kronowski for the purposes of discouraging the exercise of protected rights by transferring Atherton, Reagan and Kronowski out of their respective bureaus. B. That the Borough of Highland Park take the following affirmative action: 1. Rescind the current Bureau Rotation Program. The Borough may institute a new Bureau Rotation Program but it must be free of all taint of unlawful interference. 2. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix A A. @ Copies of such notice, on forms to be provided by the Commission, shall be posted immediately upon receipt thereof, and after being signed by the Respondent = s authorized representative, shall be maintained by it for at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent to assure 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 has taken to comply herewith. /s/Edmund G. Gerber Hearing Examiner DATED: June 22, 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; (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. @ 2/ Briefs were received by December 10, 1981. 3/ It is significant that Arrisi = s plan for the rotation of officers was done on the basis of seniority so that Atherton, Reagan and Kronowski will be next in line among the patrolmen to be rotated into the three bureaus. 4/ This pressure as discussed above was unlawfully motivated. ***** End of HE 82-62 *****