H.E. No. 82-66

Synopsis:

In an unfair practice charge brought by Fred D. Butler, an individual, against the Newark Housing Authority, A Hearing Examiner of the Public Employment Relations Commission (Commission) recommends that the Commission find that the Authority committed an unfair practice when it altered its own policy concerning granting of leaves of absence. This action was in response to Mr. Butler's application to have his leave of absence from the Authority extended. It was recommended however that the Commission dismiss another allegation of Mr. Butler's to the effect that the city violated his rights under the Act when it refused to grant him a retroactive salary increase. It was found that a large number of other employees who did not exercise protected rights were also denied this retroactive increase. Accordingly, it was found that the increase was not motivated by the exercise of protected rights nor did the denial of retroactive increments interfere with the exercise of protected rights.

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. 82-66, 8 NJPER 455 (¶13213 1982)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

72.317 72.318 72.323 72.342 72.366

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 82-066.pdf
Appellate Division:
Supreme Court:

H.E. NO. 82-66 1. H.E. NO. 82-66 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of NEWARK HOUSING AUTHORITY, Respondent, -and- Docket No. CI-81-46-62 FRED D. BUTLER, Charging party. Appearances: For the Respondent William D. Manns, Jr., Esq. For the Charging Party Love and Randall, Esqs. (John C. Love, Esq.) HEARING EXAMINER = S RECOMMENDED REPORT AND DECISION On January 19, 1981, Fred D. Butler filed an Unfair Practice Charge with the Public Employment Relations Commission (Commission) alleging that the Newark Housing Authority (Authority) has engaged in unfair practices within the meaning of N.J.S.A. 34:13A-5.4(a)(1), (2), (3) and (7)1/ in that the Authority failed to grant an extension of a six-month leave of absence to Mr. Butler while granting such extensions to others and further failed to grant retroactive salary increments to the Charging Party for 1978, 1979 and 1980 although said increments were granted to others. It is alleged that all these actions were designed to interfere with the Charging Party, in violation of his rights under the Act. It appearing that the allegations of the charge, if true, might constitute an unfair practice within the meaning of the Act, a Complaint and Notice of Hearing was issued on December 24, 1981. Pursuant thereto a hearing was held on March 8, 1982. Both parties were given an opportunity to present evidence, examine and cross-examine witnesses, argue orally and present briefs. Fred Butler was an employee of the Housing Authority of the City of Newark, a public employer within the meaning of the Act. He had earlier brought an unfair practice charge concerning the Housing Authority before the Commission. See, In the Matter of Housing Authority of the City of Newark and Fred D. Butler, P.E.R.C. No. 81-48, 6 NJPER ___ ( & 11255 1980). In that proceeding the Housing Authority was found to have committed an unfair practice in violation of ' 5.4(a)(1). Mr. Butler had attempted to form an employee organization to represent middle management employees of the Authority. Mr. Butler and several other middle management people drafted and sent copies of a letter to some 37 middle management people employed by the Authority. After the letters were sent Mr. Butler was asked to attend a meeting with his immediate supervisor to discuss this memo. Mr. Butler declined stating that all the signers of the memo should attend together rather than just himself in an individual meeting. The Authority interpreted Butler = s refusal to attend the meeting to be an act of insubordination and suspended Mr. Butler for five days. It was held that since interrogation of employees as to the exercise of protected rights is unlawful, it was unlawful to penalize Butler for his refusal to accede to such an interrogation. In the instant matter, Butler took a leave of absence from the Authority to assume the position of Director of the Housing Authority in White Plains, New York in April of 1980. During his absence, the Authority entered into a contract with a blue collar unit of employees within the Authority granting these employees increased wages and benefits. Shortly thereafter the Authority passed a resolution granting retroactive salary increases to A all current and active managerial and executive employees. @ The Authority refused to grant retroactive wages to any employees who were on leave of absence. Butler takes the position that this was directed, at least in part, at him because of his prior activities in attempting to establish an employee organization. It should be noted, however, that there were approximately 26 other employees who were also denied retroactive increases because of the language limiting these raises to current and active employees and this action of the Authority was subject to a civil court action in Superior Court, Docket No. L-45912-80, wherein Judge Marzulli upheld the Authority = s right to deny retroactive increases to other former and otherwise inactive employees of the Authority. The only evidence adduced at the hearing to demonstrate anti-union animus referred to an appearance by Mr. Butler before the Housing Authority to appeal his denial of this retroactive increment. After a long, protracted argument between himself and members of the Authority, the Executive Director of the Authority, Mr. Milton Buck, stood up stating, A I don = t have to listen to this, @ and walked out of the meeting room. This evidence, even in conjunction with the prior finding of an unfair practice, does not demonstrate animus on the part of the Authority. It is apparent that Butler was one of many employees so adversely affected and nothing indicates to the undersigned that the Authority = s action was in any way either related to Mr. Butler and his prior protected activities or interferes with, restrains or coerces other employees in their exercise of protected rights. The other aspect of this matter concerns the refusal of the Authority to extend Mr. Butler = s leave of absence. Mr. Butler = s leave of absence was due to expire in October of 1980. In early September he submitted a request to the Authority asking that they extend his leave of absence. According to the testimony of Mr. Howard Gottlieb, when he saw Butler = s application he felt he had to revise or tighten up the Authority = s policy concerning leaves of absence. He therefore recommended to the Authority that they establish a new, consistent policy concerning leaves of absence. He recommended that the Authority pass a resolution whereby leaves of absence without pay will not be granted to permanent employees for any period which exceeds six months at any one time. The only exception to the policy shall be A persons serving as elected officials or serving in another city agency @ or otherwise due to illness. The Authority adopted ths policy and determined that since Butler was neither a city employee (in this matter, the Authority considered city employees to be employees of the City of Newark) nor an elected official, Mr. Butler = s request was denied and after his six-month leave of absence he was terminated in November, 1980. While again, as in the case before, there is no evidence of animus, the timing and the admitted causal relationship between Butler = s request to extend his leave of absence and the promulgation of the new policy causes me to recommend that the Commission find that the Authority committed a ' 5.4(a)(1) violation when it promulgated this policy. According to the testimony of Mr. Gottlieb there were only three or four other employees who were adversely affected by ths policy and there were a number of city employees, who because of the policy exemptions, were not affected. The inescapable question here is, if this existed as a problem before, why did the city wait until Mr. Butler applied for an extension? The causal connection here is overwhelming. There is no question that, in view of Mr. Butler = s past history of being an employee association advocate and his success before this agency earlier, the actions of the Authority itself tend to interfere with and restrain the exercise of protected rights by other employees of the Authority.2/ 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 Authority, P.E.R.C. No. 80-73, 5 NJPER 550 ( & 10285 1979). Accordingly, it is hereby recommended that the Commission find that the Housing Authority of the City of Newark violated ' 5.4(a)(1) when it denied Fred Butler a six-month extension on his leave of absence. It is further recommended that the Commission ORDER: 1. The Newark Housing Authority to cease and desist from interfering with, restraining or coercing its employees in the exercise of their rights by refusing to grant Fred Butler a six-month extension to his leave of absence. 2. That the Newark Housing Authority retroactively grant Fred Butler an extension of his leave of absence running from October 1980 to the date of the Commission = s decision in this matter and further running six months into the future beyond the date of the Commission = s decision. 3. Post at all places where notices to employees are customarily posted, copies of the notice marked Appendix A A. @ Copies of such notice, on forms to be provided by the Commission, shall be posted immediately upon the receipt thereof, and, after being signed by the Authority = s authorized representative, shall be maintained by it for a period of sixty (60) consecutive days. Reasonable steps shall be taken by the Respondent to ensure that such notices are not altered, defaced or covered by other material. 4. Notify the Chairman of the Commission within twenty (20) days of receipt what steps the Authority has taken to comply herewith. /s/Edmund G. Gerber Hearing Examiner DATED: June 28, 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; (7) Violating any of the rules and regulations established by the commission. @ 2/ Proof of motive or anti-union animus are not essential elements to establish an independent violation of ' 5.4(a)(1). ***** End of HE 82-66 *****