H.E. NO. 84-10

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

HUNTERDON COUNTY SHERIFF,

BOARD OF CHOSEN FREEHOLDERS,

Respondent,

-and-	Docket No. CO-83-127-68

HUNTERDON COUNTY SHERIFF'S

OFFICERS' ASSOCIATION, FRATERNAL

ORDER OF POLICE, LODGE #94,

Charging Party.

Appearances:

For the Respondent

Harper, Hansbury & Mulvaney, Esqs.

(John J. Harper, Of Counsel)

For the Charging Party

Bernhard, Durst & Dilts, Esqs.

(Edward R. Bernhard, Of Counsel)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission ("Commission") on November 18, 1982 by the Hunterdon County Sheriff's Officers' Association, Fraternal Order of Police, Lodge #94 ("Charging Party" or "Association") against the Hunterdon County Sheriff, Board of Chosen Freeholders ("Respondent" or "Sheriff"). The charge alleged that the Sheriff violated the New Jersey Employer-
Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the "Act"), specifically §5.4(a)(1)1/ by intimidating Association officers for engaging in protected activity.

It appearing that the allegations of the Unfair Practice Charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on February 16, 1983, scheduling a hearing for April 13 and 14, 1983.

A prehearing conference was held on April 6, 1983. Counsel for both parties agreed at the prehearing conference to investigate the charges and exchange certain information and adjourned the hearing date to May 23 and 24, which was subsequently also adjourned. On June 27, 1983 the undersigned issued an order rescheduling the hearing to be held on July 25 and 26.

On July 22, 1983 counsel for the Respondent, with the consent of his adversary, requested that the July 25 hearing be held at the Hunterdon County Court House. Counsel to the Respondent requested the change of hearing site because six sheriff's officers had been served with subpoenas to appear at the 10:00 a.m. hearing in Trenton,2/ and that it would not be possible to meet the criminal court schedule of the New Jersey Superior Court sitting in Hunterdon County if six sheriff's officers were away from the Court House simultaneously.3/ The undersigned agreed, therefore, to convene the hearing at 10:00 a.m. at the Hunterdon County Court House.

Counsel for the Charging Party appeared at the hearing, and told the undersigned he would not participate in the hearing, because he was not permitted to meet with his witnesses that morning to prepare for the hearing. He placed in the record copies of two memoranda (CP-1 and 2) from the Sheriff to his clients indicating that because of the court schedule the hearing would be held in Hunterdon County and that the individuals should remain on duty until called to testify. One of the memos stated that an attempt would be made to excuse as many officers together at one time as possible. The undersigned reminded counsel for Charging Party that pursuant to N.J.A.C. 19:14-6.8 he had the burden of prosecuting the case and proving all allegations of the complaint and that by refusing to participate in the proceedings the case might be dismissed for lack of prosecution.

Counsel did not request subpoenas from the undersigned pursuant to N.J.A.C. 19:15-1.2. The undersigned was unaware subpoenas had been issued. Assuming arguendo they were valid subpoenas, no request was made to the Commission for enforcement of the subpoenas, which clearly would have been the appropriate course of action had the subpoenas not been honored.

Counsel for the Respondent indicated he intended to place evidence on the record which would show how the Respondent arranged to have witnesses available for the PERC hearing while complying with the Judges trials requirements for July 25, 1983. Nevertheless, counsel for the Charging Party left the hearing room and refused to participate in this proceeding further.

Sheriff Ruth S. Carpenter, Undersheriff Robert W. Schottman and James L. Totten all testified credibly as to the court room assignments required of Sheriff's officers for Monday, July 25 and Tuesday, July 26.

On Friday counsel for the Charging Party contacted Sheriff Carpenter and requested that the six officers be available to meet with him at 9:15 a.m. prior to the 10:00 a.m. hearing on Monday, July 25, 1983. The Sheriff agreed. The six officers were at the office on Monday, July 25, as agreed but their counsel did not meet with them. Instead he appeared at the hearing after 10:00 a.m. and accused the Sheriff of not releasing her employees in order for him to prepare his case Monday morning.

Respondent moved that the unfair practice charge be dismissed for lack of prosecution. He noted that the order rescheduling the hearing for July 25 had been issued on June 25 by the undersigned, which afforded both parties one month to prepare for the hearing.4/

The undersigned recommends that the Commission grant the Respondent's motion to dismiss the unfair practice charge and I further recommend that the charge be dismissed with prejudice.

The Charging Party's counsel had adequate notice to prepare his case for the hearing. Also, while the Sheriff complied with his request to have his witnesses available at 9:15 a.m. for the 10:00 a.m. hearing, he did not meet with them. His "subpoenas" were served one working day prior to the hearing. He made no request for enforcement of the subpoenas. He made no request for adjournment of the hearing. He consented to the changing of the site of the hearing.

Based on the above the undersigned recommends that the Commission ORDER that the Complaint be dismissed with prejudice in its entirety.

/s/Joan Kane Josephson

Hearing Examiner

DATED:	August 8, 1983

Trenton, New Jersey