H.E. NO. 1.
H.E. NO. 95-5
STATE OF NEW JERSEY
BEFORE A HEARING EXAMINER OF THE
PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the Matter of
BOROUGH OF SAYREVILLE,
Respondent,
-and- Docket No. CO-H-93-233
P.B.A. LOCAL NO. 98,
Charging Party.
SYNOPSIS
In response to a remand by the Commission in PERC No. 94-104, 20 NJPER 228 (& 25112 1994), the Hearing Examiner concedes that he erred in failing to have ordered a broader remedy than he initially perceived to be necessary. The Chief of Police of the Borough had issued three sets of Specifications of violations by the PBA President, Charles Kelly, as to his duties as a patrolman, which cross-blended with his duties as PBA President. The Hearing Examiner had initially recommended that a remedy be entered only upon one half of the specifications, those being the ones that were actually litigated at the hearing. Upon reconsideration of the entire record, the Hearing Examiner realized that there was no way in which to separate the separate specifications, one from another. Therefore they should have been considered in the aggregate and an appropriate remedy made. The remedy on remand was to order withdrawn all of the Specifications made by the Chief in two separate documents and, further, that they be expunged from Kelly's personnel file.
However, there was one set of Specifications of acts of misconduct of Kelly, which warranted non-interference by the Hearing Examiner. These pertained to prerogatives of the Chief of Police in issuing an internal memorandum of guidelines for the conduct of matters within the Department. The allegations as to this portion of the Unfair Practice Charge were recommended for dismissal.
A Hearing Examiner's Supplemental 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.
H.E. NO. 95-5
STATE OF NEW JERSEY
BEFORE A HEARING EXAMINER OF THE
PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the Matter of
BOROUGH OF SAYREVILLE,
Respondent,
-and- Docket No. CO-H-93-233
P.B.A. LOCAL NO. 98,
Charging Party.
Appearances:
For the Respondent, Ruderman & Glickman, Attorneys,
(Steven S. Glickman, of counsel)
For the Charging Party, Weinberg & Kaplow, Attorneys,
(Richard J. Kaplow, of counsel)
HEARING EXAMINER'S RECOMMENDED SUPPLEMENTAL REPORT
AND DECISION ON REMAND
The Hearing Examiner issued his Recommended Report and Decision on December 6, 1993, in which he recommended that the Commission find that the Borough violated ' ' 5.4(a)(1) and (3) of the Act by the egregious conduct of its Chief of Police over many years (H.E. No. 94-11, 20 NJPER 36 (& 25012 1994). Thereafter, on January 3, 1994, the Charging Party filed limited exceptions to the Hearing Examiner's Recommended Report and Decision, namely, it contended that the scope of the Recommended Order was too narrow. The Borough responded to the Charging Party's exceptions on February 7th, contending that the Hearing Examiner's limitations on his recommended remedy were proper. The Respondent had filed plenary exceptions on December 30, 1993. On April 29, 1994, the Commission,
in a unanimous decision, ordered that the case be remanded to me for a Supplemental Report, consistent with its opinion (PERC No. 94-104, 20 NJPER 228 (& 25112 1994).
Briefly, the prior history of this case discloses that the Charging Party filed an Unfair Practice Charge on December 31, 1992, alleging, inter alia, multiple violations by the Borough of N.J.S.A . 34:13A-5.4(a)(1) and (3).1/ The Borough's Chief of Police, Douglas A. Sprague, charged Kelly with violations of the rules and regulations of the Police Department as of November 18, 1982; in or around early February 1992, Kelly communicated with the Mayor and Council regarding a vacancy in a Captain's position; when the Chief refused to participate in a certain proceeding and hearing, he suspended Kelly for three days without pay, following which Kelly was exonerated; notwithstanding a statute which provides that no officer shall be suspended or fined without a hearing, Kelly and other members of the PBA have been suspended without being afforded a hearing; the Chief has charged Kelly with failing to report his absences on PBA matters despite the fact that the Business Administrator of the Borough was the one who summoned Kelly to his office to discuss such PBA matters; on October 30, 1992, the Chief
1/ These subsections prohibit public employers, their representatives or agents from: "(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act. (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."
summoned Kelly and two superior officers to his office where he told Kelly that his actions as President of the PBA brought disgrace to the Department and that he would not permit Kelly to make any comments about the Department, etc.; within weeks of this meeting the Chief sought the termination of Kelly; the Chief has refused to abide by the collective negotiations agreement between the parties, stating that he will not permit the agreement to interfere in any way with his running of the Department; and the Borough has permitted the Chief to pursue stale charges for the sole purpose of harassing Kelly as President of the PBA; adding, specifically, Kelly's First Amendment rights. 2/
Following the issuance of my Recommended Report and Decision on December 6, 1993, supra , the Commission first noted my finding that the Borough had violated ' ' 5.4(a)(1) and (3) by the "egregious conduct of its police chief, over many years..." and that this was motivated by anti-union animus and hostility toward the PBA President's protected activity, which tended to interfere with his exercise of those rights. Further, the Commission observed that I had found that the 12 specifications in the Chief's November 1992 charges against Kelly "...in the aggregate, constituted an independent violation of the ' 5.4(a)(1)"; and that specifications 4, 5, 8, and 12 independently violated the same subsection of the Act.
2/ On March 17, 1993, a Complaint and Notice of Hearing was issued and hearings were held before me on May 27, 28 and June 3, 8 and 17, 1993.
Also, the Chief's seeking Kelly's removal through the November 1992 charges was noted as an independent violation of ' 5.4(a)(1) of the Act. The Commission observed further that I had found that the Chief's memorandum to Lt. Zdan, regarding Kelly's assignment to Borough Hall, would have independently violated ' 5.4(a)(1), but this allegation was deemed untimely as was the independent allegation of favoritism. 3/
The heart of the remand pertains to my recommendations regarding remedy. Here the Commission observed that I had recommended that the Borough "cease and desist" from interfering with Kelly's protected rights and from discriminating against him because of the exercise of those rights. Note was then taken that I had only recommended that the Borough be ordered to withdraw specifications 2, 4, 5, 8 and 12 of the November 1992 charges, as well as those in the "sanitized version" of these charges served upon Kelly in February 1993. The Commission noted, finally, my recommendation that any reference to those specifications be expunged from Kelly's personnel file and that a notice of the Borough's violations be posted.
On December 30, 1993, the Borough filed exceptions to my findings of fact and conclusions of law, supra , which the Commission determined need not be addressed at this time. However, as
3/ The Commission noted finally that I had found that those of the Borough's actions that independently violated ' 5.4(a)(1) of the Act also had violated ' 5.4(a)(3).
previously noted, the Charging Party filed limited exceptions to the scope of my recommended remedy on January 3, 1994. There it was contended that I had erred in not having recommended the withdrawal of all 12 specifications filed by the Chief against Kelly, i.e., November 1992, and including those charges filed in February 1993 and on April 3, 1993. On February 7th, the Borough replied to the PBA's exceptions, asserting that I had properly limited the scope of the withdrawal of specifications in my recommended order of December 6, 1993.
Based upon the issues raised in the exceptions of the PBA and the Borough's reply, the matter was remanded to me "...for clarification of the scope of his (my) conclusions and recommendations..."
* * * *
Based upon the original pleadings, the transcripts of the five days of hearing in this matter, the several exhibits, the post-hearing briefs of the parties, their respective exceptions and the reply of the Borough, which together constitute the entire record in this proceeding, I reiterate my 21 Original Findings of Fact, set forth in H.E. No. 94-11 at pp.4-15, which are incorporated herein by reference.
* * * *
SUPPLEMENTAL ANALYSIS Preliminary Notes
1. It would appear from the Commission's Remand of April 29, 1994, that I am, inter alia , directed to explain why I did not order the Borough to withdraw forthwith all of the original 12 specifications of charges against Charles Kelly, contained in the Chief's November 18, 1992 specification of charges (CP-1), instead of having recommended that only & 's 24/ , 4, 5, 8 and 12 be withdrawn. Similarly, I am to address the "sanitized version" of the charges as served upon Charles Kelly on February 5, 1993 (CP-11). These latter charges were filed to conform with the fact that the Borough is a Civil Service municipality, which requires that a precise format be followed. CP-1 and CP-11 will be considered together with primary emphasis on CP-1.
2. My original Recommended Order failed to make any reference to the Chief's Specifications against Charles Kelly in Section B., which were dated April 2, 1993 (CP-12). These were the subject of my original Findings of Fact Nos. 15 & 16 wherein I found that the Chief alleged in a memorandum of February 26, 1993 to Captain Farley that Kelly had stated that because the Chief's undated "Internal Affairs Policies & Procedures" memo was subject to review, the members of the PBA would not comply with it. Further, on March 15, 1993, Kelly had written to Farley, complaining again about the inadequacy of the Chief's "Internal Affairs" guidelines, and that a grievance had just been filed, challenging the Chief's
4/ This & reference is in error. It is hereby corrected to read & 1 and is now consistent with CP-1 and F/F No. 9.
issuance of these guidelines. The April 2nd charges by the Chief resulted from the failure of Kelly to retract his February 26th memo to Farley. My failure to have discussed my Findings of Fact Nos. 15 and 16, and to have made recommendations(s), will be rectified hereinafter.
3. Finally, a review of the pleadings discloses that although the February 1993 and April 1993 specifications filed by the Chief against Kelly (CP-11 & CP-12) were after-the-fact of the filing of the original Unfair Practice Charge, these allegations were timely, were "fully litigated" during the hearing, and are properly before the Commission in this remand: Commercial Tp. Bd. of Ed. and Commercial Tp. Support Staff Ass'n and Collingwood , P.E.R.C. No. 83-25, 8 NJPER 550 ( & l3253 l982), aff'd App. Div. Dkt. No. A-l642-82T2 (l2/8/83).
By Way of Explanation, The Hearing
Examiner Initially Recommended In
His "Recommended Order" [H.E. No. 94-11,
p.p. 32, 33] That Only Five Of The
Specifications In CP-1 and CP-11
Be Withdrawn -- This Was in Error
First, it is noted that the incorporation of & 2 from CP-1 and CP-11 into Section B.2. of my Recommended Order was erroneous; it should have been & 1 from CP-1 & CP-11 instead. This is now corrected.
This aside, I recommended that only the five enumerated paragraphs be withdrawn from the Chief's Specifications [ & 's 1, 4, 5, 8 & 12] for the reason that they were the only paragraphs that were litigated . In other words, as you comb through the record, you
will note that there was no evidence adduced as to & 's 2, 3, 6, 7,5/ 9, 10 or 11 of the Chief's Specifications. In so doing, I overlooked the total picture, namely, that the twelve Specifications in CP-1 and CP-11 were, in the aggregate, part and parcel of the same "ball of wax." I am here concluding that, in the exercise of my authority to make recommendations as to remedy, I can find that the twelve Specifications together violated the Act, notwithstanding the fact that each and every one was not actually litigated before me. This is the case because there is ample basis for me to infer from those Specifications not litigated that the same conclusions would obtain vis-a-vis an independent violation of ' 5.4(a)(1) and a related violation of ' 5.4(a)(3). Thus, I intend to recommend a broad order as to the conduct of the Borough by its Chief of Police with respect to CP-1 and CP-11. 6/.
I initially held that the Borough independently violated Section 5.4(a)(1) of the Act but only as to & 's 1, 4, 5, 8 and 12 of the Chief's Specifications. This was erroneous since it was the Chief who decided to serve Kelly with twelve Specifications on November 18, 1992, some of which were timely under the six-month
5/ The evidence in F/F No. 12 was found to be tangential to the issues presented.
6/ See here the decision of a Hearing Examiner of the Pennsylvania Labor Relations Board in Lackawanna County Area Vo-Tech School, 25 PPER & 25104 (1994) where the negative evaluation and suspension of a teacher was motivated by animus. Although three of six infractions appeared to be legitimate, the evaluation as a whole was tainted by retaliatory motivation.
limitation Section 5(c) and some of which were not. I am now finding that all of the charges were timely and, as such, were within my authority to recommend a remedy.7/ I reiterate here that the Chief's issuance of CP-1 and CP-11 constituted violations of ' 5.4(a)(1) independently [H.E. No. 94-11, pp. 20-26] and ' 5.4(a)(3) [hostility ] (H.E. No. 94-11, pp. 27-30).
The Specifications In CP-12 Will
Not Be Ordered Withdrawn
As noted previously under & 2 of my Preliminary Notes, my original Recommended Order failed to make any reference to those Specifications by the Chief against Kelly, which were dated April 2, 1993 (CP-12) and which were fully litigated. I had, however, made two Findings of Fact with respect to these Specifications (F/F Nos. 15 & 16). These Specifications resulted from Kelly's failure to have retracted a memorandum of February 26, 1993 to Captain Farley where Kelly had stated that because the Chief's undated "Internal Affairs Policies & Procedures" memorandum was subject to review, the members of the PBA would not comply with it. Further, on March 15th, Kelly had written to Farley, complaining again about the inadequacy of the Chief's "Internal Affairs" guidelines, adding that a grievance had just been filed, challenging the Chief's issuance of these guidelines.
7/ My earlier comments in H.E. No. 94-11 with respect to timeliness in F/F Nos. 7, 9, 12 & 18 are now superceded by my original Analysis at Section II, pp. 20, 21, which correctly states my initial, and now current, conclusions as to CP-1 and CP-11. My Recommended Order, infra , will necessarily refer to both the original charges of November 18, 1992 (CP-1) and the "sanitized" charges of February 5, 1993 (CP-11).
I find that there is nothing whatsoever involving Kelly and the exercise of protected activities in his conduct as found above. Therefore, I find that Kelly was without the Act's protection in this matter.
Additionally, nothing changed when, on March 15, 1993, Kelly advised Farley that a grievance had been filed by the PBA, challenging the Chief's issuance of these guidelines. Even if a grievance of this type were to have had ultimate merit, the basic rule is that you follow the orders given and grieve later.
Accordingly, my Findings of Fact Nos. 15 & 16 are restated upon this record. The conduct of Charles Kelly did not involve the exercise by him of protected activities under our Act.
* * * *
Upon the remand from the Commission, as described above, I have concluded that no additional Findings of Fact are necessary but that the recommendations as to the findings previously made must be modified in accordance with the discussion and analysis set forth above in this Decision. Based upon reconsideration of the entire record in this case or the respective exceptions filed by the parties the Commission's decision on remand, I make the following:
SUPPLEMENTAL CONCLUSIONS OF LAW
1. The Respondent Borough independently and derivatively violated N.J.S.A . 34:13A-5.4(a)(1) by the egregious conduct of its Chief of Police, Douglas A. Sprague, over many years, dating at least to 1987, which conduct includes, in particular, the
Specifications set forth by the Chief on November 18, 1992 and restated on February 5, 1993 (CP-1 & CP-11), all of which has tended to interfere with the rights of Charles Kelly, the President of the PBA, which are guaranteed by Section 5.4(a)(1) of the Act.
2. The Respondent Borough violated N.J.S.A . 34:13A-5.4(a)(3) by the same conduct of the Chief vis-a-vis Charles Kelly as under ' 5.4(a)(1) above since the Charging Party has fully met the requisites of Bridgewater Tp. v. Bridgewater Public Works Ass'n. in having proven that the Chief's conduct toward Kelly was motivated by anti-union animus and hostility to Kelly's exercise of protected rights.
SUPPLEMENTAL RECOMMENDED ORDER
The Hearing Examiner supplementally recommends that the Commission ORDER:
A. That the Respondent Borough cease and desist from:
1. Interfering with, restraining or coercing its employees in the exercise of the rights guaranteed to them by the Act, particularly, by failing to check the conduct of its Chief of Police who, over many years, from at least 1987, has tended to interfere with the rights of Charles Kelly in the performance of his duties as PBA President.
2. Discriminating in regard to any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by the Act, particularly, by failing to check the conduct of its Chief of Police who has, over
many years, manifested animus and hostility toward Charles Kelly and, additionally, has retaliated against him for his exercise of protected activities, all of which was known to the Borough.
B. That the Respondent Borough take the following supplemental affirmative action:
1. Cease and desist from permitting its Chief of Police to engage in the activities set forth above under paragraphs A.1 and A.2.
2. Withdraw forthwith the following disciplinary charges against Charles Kelly, contained in the November 18, 1992 Specifications (CP-1): & 's 1 through 12; and as similarly repeated in the sanitized version of February 5, 1993 (date served) [CP-11]: & 's 1 through 12.
3. Any and all references to the above Specifications in CP-1 and CP-11, which now appear in the personnel file of Charles Kelly are to be expunged forthwith.
4. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix "A." Copies of such notice shall, after being signed by the Respondent's authorized representative, be posted immediately and maintained by it for at least sixty (60) consecutive days. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by other materials.
5. Notify the Chairman of the Commission within twenty (20) days of receipt what steps the Respondent has taken to comply with this order.
C. That the allegations in the Unfair Practice Charge that the Borough violated the Act by having served Charles Kelly with Specifications on April 2, 1993 (CP-12) are hereby dismissed in their entirety.
Alan R. Howe
Hearing Examiner
Dated: July 22, 1994
Trenton, New Jersey ***** End of HE 95-5 ***** |