H.E. NO. 84-11

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

CITY OF EAST ORANGE, NEW JERSEY,

Respondent,

-and-	Docket No. CO-83-44-45

COMMUNICATIONS WORKERS OF AMERICA,

AFL-CIO,

Charging Party.

Appearances:

For the Respondent, Green and Dzwilewski, Esqs.

(Roger Jacobs, Esq.)

For the Charging Party

Ann F. Hoffman, Counsel, District 1, CWA

HEARING EXAMINER'S RECOMMENDED REPORT AND DECISION

On August 25, 1982, the Communications Workers of America, AFL-CIO ("CWA") filed an Unfair Practice Charge with the Public Employment Relations Commission ("Commission") alleging that the City of East Orange ("City") engaged in unfair practices within the meaning of N.J.S.A. 34:13A-5.1 et seq. ("Act") when it caused Laverne Chambers to be suspended for five days when Chambers refused to participate in gathering information concerning the job performance of a president of CWA Local 1077 in an effort to build a case to terminate her employment. It was further alleged that the City also suspended Saundra Heath for her engaging in protected activity when she spoke out in defense of herself and her co-workers when they were accused of "knowing of and consenting to" the disbursement of a check to an employee who was on maternity leave and therefore not entitled to same.

It was specifically alleged that these actions violated subsections 5.4(a)(1) and (3) of the Act.1/

It appearing that the allegations of the charge if true may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued by the Director of Unfair Practices on November 19, 1982.

Hearings were held on February 18 and 19, 1983, in the Commission offices in Newark, New Jersey, at which time both parties were given an opportunity to examine and cross-examine witnesses, present evidence and argue orally. Both parties submitted briefs which were received by April 18, 1983.

Maryann Whitt is the Court Administrator in the East Orange Municipal Court. In October of 1982 Whitt approached Laverne Chambers, a clerk in the court, and asked her to become Administrative Assistant. Chambers agreed and assumed the responsibilities of this position. As part of her duties Chambers was requested to check up on leave time of the president of CWA Local 1077, Toni Westry. Whitt told Chambers that she believed that Westry was taking excessive leave and falsely claiming it was for union business. Chambers also testified that Westry expressed dissatisfaction with the union on several occasions.

Chambers complied with Whitt's request and compiled a record of all leave time including union business time taken by Westry. Sometime in November of 1981 Chambers resigned from her position as Administrative Assistant telling Whitt that the position was not working out and she wanted to return to her old duties. Accordingly, Whitt transferred Chambers from Administrative Assistant back to Clerk Typist. There was no evidence regarding any union or Association activity on the part of Chambers during this period of time.

On February 12, 1982, a payday, Whitt was absent and Chambers' successor to the Administrative Assistant position asked Chambers whether a check was to go out to Renee Norwood who was then on maternity leave. Chambers testified that although she knew Norwood was on leave she did not know whether her sick leave or other accrued benefits had been exhausted and suggested that the assistant contact someone else to determine whether or not Norwood should receive a check. The check ultimately was given to Norwood. On February 19th Whitt discovered that the check was given to Norwood when in fact she was not entitled to it. Whitt testified that Chambers knew that Norwood was not supposed to receive the check in question because Chambers had filled out the employee form signifying that Norwood was to go on leave. Chambers testified, however, that she asked Whitt for assistance in completing this form since she had never done one before and accordingly did not know whether or for how long Norwood would receive a check after going on leave. Whitt further testified that the master payroll list for the pay period was prepared by Chambers and Chambers had neglected to put down on that form that Norwood was not to receive a check. This sheet went to the payroll department wherein the check for Norwood was generated. Chambers denies that she prepared the form. She testified that Whitt prepared said list and it was Whitt who failed to make the notation.

After Whitt discovered what happened on February 22nd she accused Chambers of knowingly letting the check go out when she knew that Norwood was not entitled to it. Whitt gave Chambers a five-day suspension.

Shortly after Whitt's discussion with Chambers, some of the other employees were talking about raising money for Norwood to buy her a show present. Whitt thereupon called a general meeting of all the employees of the municipal court. She accused all the employees of engaging in a conspiracy to allow Norwood to improperly receive a check and called them all "lying dogs." Although this last accusation was denied by Whitt, this was credibly testified to by three witnesses: Saundra Heath, Chambers and Toni Westry.

It is noted that Whitt's testimony was evasive and inconsistent and cannot be fully credited. I find that Whitt did call the employees lying dogs.

At this point Whitt appeared agitated and was speaking in a loud tone of voice. She stated that all the employees should chip in and reimburse the city for the check which improperly went out to Norwood rather than buy Norwood a present. At this point Saundra Heath interrupted Whitt, stating, "Miss Whitt you have a lot of stuff with you. You issued this check in error. You made the error and you want the office to pay for it." Whitt then responded that Heath "could be laid off for her attitude if she didn't like what was going on." Heath "could not tell her [Whitt] what her job was" and that Heath could be let go. Heath replied that trying to get the office to pay for Whitt's mistake would be improper. The interchange continued for a short time. No threats or abusive language was used by Heath nor was profanity used in this interchange. As a result of her statements Heath received a five-day suspension for insubordination.

ANALYSIS

The purpose of the instant proceeding is not to determine whether or not the discipline meted out by Whitt was just or proper; rather, it is to determine whether the imposed discipline violated the protections afforded under the Act. Regardless of the underlying merits of the suspension of Chambers, the Charging Party has failed to establish any causal connection between Chambers' suspension and any anti-union animus on the part of Whitt. Chambers did keep records of Westry's use of union leave but an employer has a right to investigate to see that leave time is not abused and Chambers never indicated to Whitt that she opposed keeping these records. See Piscataway Twp. Bd/Ed, P.E.R.C. No. 82-64, 8 NJPER 95 (¶12029 1982). There is simply no causal connection between Chambers' record keeping and her later resignation from the Administrative Assistant job and the five-
day suspension for her alleged mishandling of Norwood's check.

There is, however, a relationship between Saundra Heath's suspension and the exercise of protected rights. Unlike the National Labor Relations Act, the word "concerted" does not appear in the Public Employer-Employee Relations Act, i.e. N.J.S.A. 34:13A-5.1 et seq. Activity does not have to be concerted activity before an employee is protected. N.J.S.A. 34:13A-5.4 expressly permits employees to present grievances personally. See Red Bank Reg. Ed/Assn and Red Bank Reg. High School Bd/Ed, 78 N.J. 122 (1978). Heath individually, and the other employees of the municipal court collectively, were being accused of wrongdoing and were threatened that they might be required to pay back Norwood's check.2/ Heath had a real grievance against this accusation by Whitt, and pursuant to the Act had a right to make it known that neither she nor the other employees had anything to do with Norwood's receipt of the check. Heath's actions were, in fact, concerted. She testified that although she spoke out primarily on her own behalf, Heath knew that a number of her co-workers were unaware of the check incident and did not even understand Whitt's accusation and accordingly spoke out on their behalf as well. There is no gainsaying an employer has the right to expect loyalty and discipline from an employee in an open meeting but Whitt was acting in an immature, if not irrational manner, making improper and arbitrary threats against the employees.

The Act contemplates that an employee will generally make her grievance known through the established grievance procedures. But that is not the only time that an employee is protected when she speaks out. It is significant that rights which arise under the National Labor Relations Act3/ "never have been confined to negotiations conducted during formal grievance, arbitration or labor contract bargaining sessions." NLRB v. Southwestern Bell, F.2d (5th Cir. 1982), 112 LRRM 2526, NLRB v. Florida Medical Center, Inc., 576 F.2d 666, 669, 98 LRRM 3144 (5th Cir. 1978); United States v. NLRB, 652 F.2d 409 (5th Cir 1982):

The informal resolution of latent grievances is a recognized, and indeed essential, component of the parties' grievance procedure. Without such informal resolutions, there is a risk of destroying formal resolutions, there is a risk of destroying the effectiveness of that procedure by weighing it down with formalized grievances. Unless employees are assured that they will be treated as equals when engaging in the informal resolution stage and that they will be free from discipline for freely speaking their minds, they will be discouraged from seeking informal resolution and encouraged to seek the protections of the more formalized grievance procedure. Ryder Truck Lines, Inc., 239 NLRB 1009, 1011, 100 LRRM 1097 (1978).

It is unrealistic to expect employees to hold their tongues and say nothing when they are falsely accused and threatened by an employer. The NLRB has promulgated a provoked insubordination doctrine -- "an employee may not be provoked into an intemperate outburst by the threatened imposition of illegal punishment." NLRB v. Southwestern Bell, supra.

In determining whether Heath's conduct warranted protection under the law, the timing and nature and deliverance of her response is all important. Heath did not interfere with the productivity of the workplace since it was Whitt who called the meeting. As stated before no profanity was used in Heath's retort nor was there a personal attack against Whitt nor did her statement escalate the emotional level of the meeting beyond that demonstrated by Whitt. But, see Pietrunti v. Bd/Ed of Bricktown, 128 N.J. Super. 149 (App. Div. 1974). It must be emphasized that the protections afforded an individual employee in this type of situation are limited. Here the response of Heath was justified in light of the attack on her and her fellow employees made by Whitt.

The City of East Orange maintains that the instant charge is untimely, that the charge was filed on August 25, 1982, and that the incidents occurred on February 22, 1982 and, accordingly, should be dismissed since the charge was brought more than six months after the alleged unlawful actions of the city.

It is noted however that the five-day suspensions were made effective March 1 through 5, 1982, which are within the six-month period. In Galloway Twp. Bd/Ed v. Galloway Twp. Educational Secy's Assn., 78 N.J. 1 (1978), the Supreme Court held in that there are in effect two unfair practices which can occur. The first is the time in which the threat is made and the second is when the threat is carried out. Given that the penalty was imposed within the six-month statutory period this matter is timely and should not be dismissed on that basis.

Accordingly, it is hereby recommended that the Commission find that:

1.	the City of East Orange did not violate §5.4(a)(1) and (3) when it suspended chambers for five days but

2.	the City of East Orange did violate §5.4(a)(1) of the Act when it unlawfully interfered with, restrained and coerced Saundra Heath in the exercise of her protected rights by suspending her for a period of five days for speaking out against the intemperate accusations of Maryann Whitt.

It is hereby recommended that the Commission issue the following:

ORDER

A.	That the City of East Orange cease and desist from:

1)	Interfering with, restraining or coercing Saundra Heath by suspending her when she responded to wrongful accusations and threats by her supervisor Maryann Whitt.

B.	That the City of East Orange take the following affirmative action:

1)	Reimburse Saundra Heath the five days of salary which she was denied when she was improperly suspended March 1 through 5, 1982, plus interest of 12% per annum to be computed commencing March 5, 1982.

2)	Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix "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. Reasonable steps shall be taken by the Respondent to ensure 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:	August 16, 1983

Trenton, New Jersey

WE WILL NOT interfere with, restrain or coerce Saundra Heath by suspending her when she responded to wrongful accusations and threats by her supervisor Maryann Whitt.

WE WILL reimburse Saundra Heath the five days of salary when she was denied when she was improperly suspended March 1 through 5, 1982, plus interest of 12% per annum to be computed commencing March 5, 1982.