H.E. No. 83-23

Synopsis:

In a proceeding to determine the compliance of Bergen County with the order of the Public Employment Relations Commission in County of Bergen Pines, Operating Bergen Pines County Hospital and Council 52, Local 549, AFSCME, P.E.R.C. No. 82-117, wherein it was found that Richard McCulley was wrongfully denied employment, a Hearing Examiner recommends the Commission find that for a period of approximately six months out of the approximately one year that McCulley was wrongfully denied employment by the Hospital he was employed by AFSCME, Council 52 and for that six-month period the County does not owe McCulley back pay.

PERC Citation:

H.E. No. 83-23, 9 NJPER 167 (¶14079 1983)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

74.344 74.335

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 83-023.pdf
Appellate Division:
Supreme Court:

H.E. NO. 83-23 1. H.E. NO. 83-23 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of COUNTY OF BERGEN (BERGEN PINES COUNTY HOSPITAL), Respondent, -and- Docket No. CO-81-375-178-C COUNCIL 52, LOCAL 549, AFSCME, Charging Party. Appearances: For the Respondent Edwin C. Eastwood, Jr., Esq. For the Charging Party Rothbard, Harris & Oxfeld, Esqs. (Sanford R. Oxfeld, Esq.) HEARING EXAMINER = S COMPLIANCE HEARING REPORT AND RECOMMENDED DECISION On June 4, 1982, the New Jersey Public Employment Relations Commission ( A Commission @ ) found that the County of Bergen, Operating Bergen Pines County Hospital ( A Hospital @ ) unlawfully discriminated against Richard McCulley when it failed and refused to consider Richard McCulley = s application for an available position, after his position as morgue attendant had been abolished. McCulley, who was the President and principal union activist for Local 549, Council 52, AFSCME AFL-CIO (Council 52), was not considered for employment in other positions because of his activities on behalf of the union.1/ The Commission ordered that the Hospital re-employ McCulley as a building maintenance worker, hospital attendant or any other equivalent position, and, make him whole for lost earnings from June 8, 1981 at the rate of pay for the higher of the two positions, less interim earnings, together with interest at the rate of 12% per annum from June 8, 1981. In compliance with the Commission order, the Hospital reinstated McCulley on July 6, 1982, as a hospital attendant at the Msgr. Wall Social Service Center in Hackensack, N.J. On July 20, 1982, Council 52 notified this agency that McCulley had not yet received his back pay award, nor had he been reinstated to a comparable position as ordered by the Commission. Council 52, therefore, requested that this agency file an application for enforcement with the Superior Court, Appellate Division. On July 22, 1982, the Hospital responded to Council 52 = s request. It contends that McCulley has not received back pay because he was employed by Council 52, at the same salary, from the date of termination until reinstatement. Additionally, the Hospital claims McCulley = s reinstated position is in full compliance with the Commission = s Order. On July 28, 1982, Council 52 notified this agency of a factual dispute concerning the characterization of payments received by McCulley from Council 52, which affects the computation of back pay. Council 52 recommended a fact finding hearing to resolve this dispute before this agency seeks to enforce its Order. It appearing that the Commission Order may not have been complied with and that a factual dispute regarding the computation of the Award exists, a notice of hearing regarding compliance proceedings was issued on November 3, 1982, by the Chairman, pursuant to N.J.A.C. 19:14-10.2. This hearing was conducted on January 12, 1983, in Newark, N.J. The parties examined witnesses and presented evidence. They were given the opportunity to make oral arguments and to file briefs by January 17, 1983. At the conclusion of the hearing, the parties agreed that the Hearing Examiner should proceed to issue a recommended decision without the benefit of a transcript. Therefore, based upon the parties = submissions and the testimony elicited at hearing, the Hearing Examiner makes the following findings of fact: Findings of Fact 1. Council 52 has had a longstanding policy regarding support of local presidents under attack through discipline by management. This policy calls for pecuniary support of discharged or suspended local leaders, pending the outcome of the appropriate proceeding. Policy dictates that if such charges are successful and back pay is awarded, Council 52 shall be reimbursed in full by the disciplined leader. 2. Council 52 = s A Support Policy @ has been implemented in the past. In 1975 the complaining witness, McCulley, was suspended or terminated (it is not clear which). The matter went to arbitration and McCulley was reinstated with back pay. During the interim period McCulley was given a loan by Council 52. Subsequently, the union successfully sued McCulley for repayment of the loan. 3. Other local officials, besides McCulley, have also benefitted by Council 52 = s A Support Policy. @ These officials have either voluntarily or involuntarily complied with the reimbursement provisions of the policy. 4. On June 11, 1981, McCulley was wrongfully terminated from the Bergen Pines Hospital. 5. On June 12, 1981, Council 52 began A supporting @ McCulley commensurate with his prior net salary. 6. Council 52 made salary deductions for Social Security and unemployment insurance from McCulley = s A support payments @ and forwarded these deductions to the appropriate agencies. 7. McCulley did not receive any of the standard benefits, such as hospitalization, pension, life insurance or auto insurance reimbursement that other Council 52 employees received. 8. On October 2, 1981, Michael Lanni, the Executive Director of Council 52, testified at the unfair practice hearing concerning McCulley = s discharge that McCulley was employed by Council 52 immediately upon his termination as a A lost time employee. @ Lanni stated that McCulley = s function as a A lost time employee @ was to continue servicing the membership he presided over. 9. Subsequent to McCulley = s termination, at an arbitration hearing at the Bergen Pines County Hospital regarding uniforms, McCulley testified that he was employed by Council 52. 10. Michael Lanni testified that he wanted McCulley = s presence maintained at the Hospital, for the benefit of the other employees, because of the nature of the termination. 11. After McCulley = s termination, he continued to function a President of Local 549, a non-paying position. McCulley manned Local 549 = s office at the Hospital, processed grievances and organized membership meetings. In addition, McCulley made more frequent trips to Council 52 headquarters in Jersey City, New Jersey, on union business. The local held an election on January 2nd and McCulley lost. His union duties were assumed by the newly elected President. 12. On cross-examination, Lanni testified that although he and McCulley discussed application for unemployment benefits, Council 52 never advised McCulley to apply and, in fact, McCulley never did apply for same. 13. Lanni testified that in December 1981 he realized McCulley = s A support @ was not being handled in a manner consistent with his status; that is, McCulley = s payments were not being treated as a loan. Henceforth, all salary deductions immediately ceased and notice was sent to the appropriate authorities explaining this action. Lanni was unable to recall whether these deductions were ever returned to Council 52. 14. Sometime in December 1981, McCulley signed a loan agreement with Council 52, witnesses by Richard Gollin, Associate Director. Neither Council 52 nor McCulley were able to produce a copy of this agreement at hearing. McCulley and Gollin testified that the terms of the agreement called for McCulley to reimburse Council 52 in the event back pay was ordered by this agency. 15. Although McCulley lost in the election for President of Local 549, McCulley remained active in the union and served as a steward for Local 549. 16. McCulley was employed by Council 52 for a Hudson County organization campaign from May 17, 1982 to June 18, 1982. AFSCME International reimbursed Council 52 for this salary expense. Salary deductions were not made from these payments received by McCulley. 17. On July 6, 1982, McCulley was reinstated by the Hospital as a hospital attendant in a drug rehab program at the Msgr. Wall Social Service Center in Hackensack, New Jersey. 18. The Msgr. Wall Social Service Center is an ancillary operation of the Hospital, located a considerable distance from the Bergen Pines Hospital. 19. McCulley is the first Bergen Pines Hospital employee ever to be stationed at Msgr. Wall. 20. Only two titles at Msgr. Wall are in Local 549 = s negotiations unit. One of these positions is held by McCulley and the other by a non-member, making McCulley the only union member at Msgr. Wall. 21. At the time McCulley was re-employed at Msgr. Wall, openings were available at the Bergen Pines Hospital. 22. McCulley believed that his duties at Msgr. Wall were different than the standard duties of a hospital attendant but the Hospital has attendants doing a wide variety of tasks. Discussion and Analysis - Back Pay It is apparent that when McCulley was let go by the Hospital, the union = s actions were not based on its own pecuniary self-interest. Rather, its actions were based on its very reason for being, the protection of one of its members from the improper conduct of an employer. Further, it served the union = s self- interest to demonstrate to all Hospital employees its support for McCulley and have him maintain his visibility at the Hospital and continue to function as the local union president. Michael Lanni never attempted to contradict his testimony at the unfair practice hearing that McCulley was, in the summer and fall of 1981, considered an employee of the union. Further, the union made the standard salary deductions from McCulley = s pay check. Although the union did not grant him the same benefits or salary as other union representatives, McCulley did not have their duties. He was in a special situation. Sometime in December 1981, Council 52 became concerned with McCulley = s status. At that time, it ceased making salary deductions and executed a loan agreement with McCulley. This, coincidentally, all took place as a Local Presidential Election was approaching. If McCulley, a candidate in the election, was not successful, which he wasn = t, the functions he was currently performing would be assumed by the new President and his services would no longer be needed. The nexus between all these events occurring within a reasonable time of each other cannot be discounted. Therefore, I find that until the date the loan agreement was executed, McCulley should be considered an employee of Council #52. The absence of evidence establishing the date of the loan agreement must work against the union for the purposes of computation of back pay since it has made the assertion. The effective date of the agreement for establishing the Hospital = s back pay obligation will be January 2, 1982, the date McCulley relinquished the presidency of Local 549. Accordingly, it is recommended that payments collected by McCulley from June > 81 to January 2, 1982, along with wages collected during the Hudson County organization campaign from May 7, 1982 to June 18, 1982, should be considered as mitigating factors in the computation of McCulley = s back pay award. Discussion and Analysis Reinstatement Regarding McCulley = s reinstatement, it is evident that the Hospital has failed to comply with the Commission = s reinstatement order. The terms of the Order call for McCulley to be reemployed in a A substantially equivalent position. @ Substantially equivalent refers not only to duties and salary, but also to location. Location in this instance is especially important because of McCulley = s activities with the union and its membership. Regardless of the Hospital = s intent, the reinstatement of McCulley at a distant facility with no other union employees, only serves to isolate McCulley from any future union activity. Therefore, it is recommended that Richard McCulley must be transferred, within a reasonable time, to a substantially equivalent position on the premises of the Bergen Pines Hospital. It is noted however that the evidence does not demonstrate that McCulley = s duties themselves were other than substantially equivalent. /s/Edmund G. Gerber Hearing Examiner DATED: January 26, 1983 Trenton, New Jersey 1/ Specifically it was found that the Hospital violated the New Jersey Employer-Employee Relations Act, as amended, N.J.S.A. 34:13A-5.4(a)(1) and (3). ***** End of HE 83-23 *****