H.E. No. 83-30

Synopsis:

A Hearing Examiner recommends that the Commission find that the Union County Prosecutor committed an unfair practice when he disciplined Richard Lazo for conducting an investigation into matters which could be used in the processing of grievances.

It was found that discipline imposed upon Michael Hughes was motivated by the protected conduct of Richard Lazo and such a discipline is similarly an unfair practice.

In a companion decision, H.E. No. 83-32, the Hearing Examiner recommends that an unfair practice charge brought by the Prosecutor concerning these same actions be dismissed. Since the actions of Lazo were protected by the Act, and although the actions of Michael Hughes standing by themselves were unprotected, they did not interfere with the selection of an employer representative in negotiations, concern a refusal to negotiate or violate any of the rules and regulations of the Commission as alleged.

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. 83-30, 9 NJPER 234 (¶14109 1983)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

72.18 72.311 72.323 72.357

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 83-030.pdf
Appellate Division:
Supreme Court:

H.E. NO. 83-30 1. H.E. NO. 83-30 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of JOHN H. STAMLER, UNION COUNTY PROSECUTOR AND THE COUNTY OF UNION, Respondent, -and- Docket No. CO-82-153-70 PBA LOCAL 250, UNION COUNTY PROSECUTOR = S OFFICE, Charging Party. Appearances: For the Respondent Weinberg & Manoff, P.A. (Richard J. Kaplow, Esq.) For the Charging Party Schneider, Cohen, Solomon & DiMarzio, Esqs. (David Solomon, Esq.) HEARING EXAMINER = S RECOMMENDED REPORT AND DECISION On January 29, 1981, PBA Local 250, Union County Prosecutor = s Office ( A PBA @ ) filed an Unfair Practice Charge with the Public Employment Relations Commission ( A Commission @ ) alleging that John H. Stamler, Union County Prosecutor, and the County of Union ( A Prosecutor @ ) violated N.J.S.A. 34:13A-5.1 et seq. when at a mandatory meeting of employees A the Prosecutor publicly berated, demeaned, criticized, punished and threatened @ Richard Lazo, President of the PBA and Michael Hughes, State Delegate to the PBA, because of their activities on behalf of the members of the bargaining unit and the PBA. It was alleged that during that meeting, the Prosecutor stated, among other things, he believed the members of the bargaining unit did not want the type of leadership and representation afforded to them by the officers of the PBA. It was specifically alleged that these activities violated ' 5.4(a)(1), (2), (3) and (4).1/ It appearing that the allegations of the charge, if true, might constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on January 27, 1982. Hearings were conducted on August 9 and 10, 1982, at which time both parties were given an opportunity to examine and cross- examine witnesses, submit evidence and argue orally. Both sides submitted briefs which were received by October 25, 1982. Upon the entire record the Hearing Examiner makes the following findings of fact. 1. Richard Lazo and Michael Hughes are detectives in the Union County Prosecutor = s office and serve as PBA President and State Delegate respectively. 2. In the fall of 1981 the PBA and the Prosecutor were engaged in negotiations for a new contract. There was pending litigation between the parties concerning the detectives = use of county vehicles for personal use. 3. Members of the unit represented by the PBA were disciplined when they were involved in accidents in county vehicles. 4. Lazo heard that a vehicle from the Prosecutor = s office was damaged and was sitting in a private auto body shop. The owner of the body shop was known to be a personal friend of the Prosecutor = s. 5. Lazo suspected that the car was being repaired by the Prosecutor without going through the established office procedures. 6. Lazo approached Bill Mello, an investigator with the Prosecutor and a former PBA President, and asked him how to make inquiry to determine if there was an impropriety concerning the car. Mello suggested that Lazo talk to his daughter, Laurie Mello, who at the time was secretary for the Division of Motor Vehicles for the County. Her job was coordinating the assignment and maintenance of the County = s vehicles. 7. Lazo approached Laurie Mello and explained his suspicions to her and asked if there was a care being repaired at a certain private auto body shop that had been in an accident. 8. Laurie Mello replied that she couldn = t check unless she had a license plate number. Lazo supplied her with the plate number. 9. Mello called the auto body shop. They told her there was no such car there. 10. When Mello asked him why he wanted this information Lazo responded that a A lot of people were getting in trouble for things and he didn = t think it was fair what they did to my father and he wanted to see if (the Prosecutor) was trying to cover up an accident that he had. @ That is, Lazo suspected th Prosecutor was trying to have the car repaired without the County knowing about it. 11. Lazo also told Mello that he didn = t want to arouse suspicion by having a member of the Prosecutor = s investigative staff making inquiries as to the vehicle. 12. When Lazo determined that the Prosecutor = s car was not at the auto body shop he abandoned his inquiry. Lauri Mello however felt there was something improper about the inquiry and she told her supervisor who, in turn, contacted the Chief of the County Detectives Roy H. Earlman. Earlman then interviewed Mello and sent a memorandum concerning this incident to the Prosecutor on November 19, 1981. 13. On the evening of October 23, 1981, Detectives Hughes met Geoffrey S. Perselay, Director of the Office of Intergovernmental Relations for the County, at a local tavern. They began a friendly discussion. The conversation switched to the ongoing negotiations between the parties. 14. During the conversation Hughes stated that he heard some detectives had followed the County Manager George Albanese and had pictures and other information which they would use against Albanese; they would release this information shortly before the upcoming election in an ad in the Newark Star Ledger. 15. On the evening of October 26 Hughes was again at the same tavern when he met Rocco Cirigliano, the Director of the Division of Budget Management for the County, Hughes told the same story to Cirigliano, that he was going to take an ad in the newspaper concerning Albanese. 16. On Tuesday, October 27th, Hughes was asked to speak with the Prosecutor. Hughes admitted to the Prosecutor that he had made the statement to Perselay but the statements were untrue and he was just trying A to needle @ Perselay. The Prosecutor gave Hughes a verbal reprimand but took no further action against him. 17. It is noted that on or about December 3, 1981, the parties were engaged in the litigation in Superior Court concerning the use of County vehicles and the detectives = meal allowance. Lazo testified on behalf of the PBA. It is noted that the grievance was filed in January of 1981 and the Prosecutor prevailed in the litigation. 18. On December 11, 1981, the Prosecutor held a regularly scheduled mandatory meeting of detectives and investigators. Lazo and Hughes were both in attendance. 19. The Prosecutor admitted that he gave an impassioned talk that lasted about ten minutes. 20. The Prosecutor recounted the benefits received by the investigators and detectives that exceed express rights under the contract. 21. He stated what when he was in private practice he represented PBA locals and A While (he) supported the goals and objectives of the PBA, he would not discount misconduct that (he) felt would be detrimental to the objectives of the Union County Prosecutor = s office. @ 22. The Prosecutor announced that Hughes and Lazo (and another detective who was accused of insubordination but was not a PBA member) would be given six-month penalty transfers, lose the use of County cars, receive written warnings and be placed on probation. 23. These steps were taken although the written reprimands were not placed in their respective files for some seven months.2/ 24. The PBA charged that at this meeting the Prosecutor stated that he believed the members of the bargaining unit did not want the type of leadership and representation afforded to them by the officers of the PBA. Lazo testified that he didn = t recall if these statements were made and Stamler denied ever making these statements, although Hughes did testify that the Prosecutor did make these statements. Given Hughes = admission that he knowingly lied to Perselay and Cirigliano, I cannot credit his testimony over that of the Prosecutor and must find by a preponderance of the evidence that the PBA failed to prove these statements were made. 25. There is no dispute that this was the first and only time in the Prosecutor = s office that an employee = s discipline was announced at a meeting and further, Lazo was the first PBA president to ever file a grievance. 26. Stamler testified as to his motivation that what offended him was, A Detective Lazo did not come and speak to me, and ask me or the Prosecutor or man to man, if I had an accident (or) where my car was. He did not go to the Chief of County Detectives and ask him about my car. @ 27. The Prosecutor testified that, A Perhaps standing alone, I might not have thought as much of it. But following right on the heels of Detective Hughes = statement it appeared to me that Hughes and Lazo were out to undermine the integrity of the Detective Bureau in its relationship with county government. @ Analysis The Commission has consistently held that: An employee may not utilize his or her employee organization position to undermine an employer = s supervisory and management status, or to engage in offensive behavior. But neither may an employer utilize its power to punish an employee for engaging in protected activity which happens to annoy the employer... In re Asbury Park, Local 95 IFPTE, P.E.R.C. No. 80-24, 5 NJPER 389 ( & 10199 1979). See also In re Hamilton Twp., P.E.R.C. No. 79-59, 5 NJPER 115 ( & 10068 1979); In re City of Hackensack, P.E.R.C. No. 78-74, 4 NJPER 140 ( & 4006 1978). The key element in establishing whether an employer has the right to discipline a union officer who is functioning in his or her capacity as a union officer is to look at whether the activity itself is protected. See Jamesburg Bd/Ed v. Jamesburg Ed/Assn, P.E.R.C. No. 81-92, 7 NJPER 102 ( & 12042 1981). In the case of Lazo, his conduct never went beyond a simple inquiry. When he found out that the Prosecutor = s car was not involved in an accident he simply abandoned that inquiry. What Lazo would have done with this information if there was an accident is a matter of conjecture. His answer to the question what would he use this information for, A Morale, @ cannot be dispositive of this issue. He admitted that he did not intend to use it in the upcoming litigation and it would not be relevant in that proceeding. Given that employees have been discipline for auto accidents, it might well be that this information could legitimately be used in a grievance concerning reporting accidents. Here Lazo = s conduct did not defame or besmirch the Prosecutor. He quietly conducted his inquiry and only approached Mello at the suggestion of her father. In a union-employer situation the parties must be considered adversary parties on an equal footing. It cannot be expected that in the role of a union advocate an employee must conduct himself as a subordinate. As long as the activities engaged in are lawful and the character of the conflict is not indefensible in the context of the grievance involved, the employees are protected. In re Hamilton Twp., supra. Admittedly Lazo was not processing a particular grievance but he was gathering information which could very well be used in cases which did, in the past, arise in the Prosecutor = s office and the gathering of information for processing grievances must be considered an integral part of the grievance process and is therefore protected activity. It cannot be said however that Hughes = conduct was so protected. The conditions in which the threats were made were in amicable social conversations. Hughes = actions can be seen as a crude coercive measure (see companion decision H.E. No. 83-32) and fall outside the protections of the Act. The Prosecutor was free to discipline Hughes. However when this incident occurred, Hughes = discipline was limited to a verbal warning. See para. 17. As the Prosecutor testified he only imposed the sanctions announced at the meeting against Hughes after he found out about Lazo = s inquiry and it appeared to him that A Hughes and Lazo were out to undermine the integrity of the Detective Bureau. @ The Prosecutor, in imposing the disciplinary assignment, placing the officer on probation, revoking the use of the county car and inserting a written reprimand in Hughes = file was influenced by matters which were protected under the Act, i.e. Lazo = s inquiry. Absent Lazo = s activity Hughes would not have received the severe penalties. Yet Lazo = s activity was protected. Accordingly, Hughes was punished for the exercise of protected rights by Lazo. The imposition of penalties in December on Hughes because of the exercise of rights under the Act does interfere with the exercise of protected rights. The manner in which the Prosecutor announced the penalties is also suspect for this was the only instance when any discipline was announced at a meeting by the Prosecutor and the relationship these men had with the PBA was known to all. The totality of conduct exhibits evidence of unlawful animus which would be violative of ' 5.4(a)(3). However the testimony of the Prosecutor as to his motivations is convincing and sufficiently credible to overcome a ' (a)(3) violation. However, the Commission in Asbury Park, supra, adopted the federal standards expressed in Crown Central Petroleum, 430 F.2d 724 (CA5, 1970). That is, if an employee is engaging in concerted activities for the purpose of mutual aid and protection, the imposition of a disciplinary sanction for insubordination may violate ' 8(a)(1) whether or not the employee has exhibited union animus. The inquiry in insubordination cases and ' 8(a)(1) focuses not on the intent of the employer but upon whether the employee was engaged in protected, concerted activities and whether or not (his actions) were indefensible under the circumstances...The issue of indefensibility turns upon the distinctive facts of each case. NLRB v. Florida Medical Center Inc., 576 F.2d 409 (CA5, 1981), 107 LRRM 3249. ORDER Accordingly, it is hereby recommended that the Commission issue the following Order. It is hereby Ordered that the Union County Prosecutor: (1) Cease and desist from imposing discipline on union officers Richard Lazo and Michael Hughes because Richard Lazo was engaged in the protected activity of conducting investigations which would assist in the processing of grievances. (2) Reassign Richard Lazo and Michael Hughes to the same assignments that they held prior to their unlawful transfers. If these assignments are unavailable, they must be assigned to substantially equivalent positions to those they held prior to their unlawful transfers. (3) Reassign county vehicles to Richard Lazo and Michael Hughes. (4) Remove from the files of Richard Lazo and Michael Hughes notices of discipline which were placed there because of Richard Lazo = s investigations to gather information which was to be used in the processing of grievances and strike all references in their files concerning their being placed on probation. (5) Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix A 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 Respondents = authorized representatives, shall be maintained by respective Respondents for at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the respective Respondents to ensure that such notices are not altered, defaced or covered by other materials. (6) Notify the Chairman of the Commission within twenty (20) days of receipt what steps the Respondents have taken to comply herewith. /s/Edmund G. Gerber Hearing Examiner DATED: March 16, 1983 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; (4) Discharging or otherwise discriminating against any employee because he has signed or filed an affidavit, petition or complaint or given any information or testimony under this act. @ 2/ When the written memorandums were placed in Lazo = s and Hughes = files, reference was made to other minor misconduct but these items were not raised at the meeting, and since they were not brought to the attention of the employees until after their disciplinary duty had been served, these reasons were given no weight here. ***** End of HE 83-30 *****