H.E. NO. 81-11

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

BOROUGH OF BRADLEY BEACH,

Respondent,

-and-	Docket No. CO-80-178-111

CO-80-321-112

P.B.A. LOCAL NO. 50, BRADLEY BEACH

SECTION AND RICHARD J. LIZZANO,

Charging Party.

Appearances:

For the Borough of Bradley Beach

Keith, Winters & Schueler, Esqs.

(Michael L. Detsky, Esq.)

For P.B.A. Local No. 50, Bradley Beach Section

and Richard J. Lizzano,

Hanlon, Dempsey & McHeffey, Esqs.

(Joseph N. Dempsey, Esq.)

HEARING EXAMINER'S

RECOMMENDED REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (herein the "Commission") on December 27, 1979 by P.B.A. Local No. 50, Bradley Beach Section and Richard J. Lizzano (hereinafter the "Charging Parties," the "PBA" or "Lizzano") alleging that the Borough of Bradley Beach (hereinafter the "Respondent" or the "Borough") had engaged in unfair practices within the meaning of the New Jersey Employer-
Employee Relations Act, as amended, N.J.S.A. 34:13A-1 et seq. (hereinafter the "Act"), in that the Respondent's Mayor sent a letter to Lizzano, Chairman of the PBA, under date of December 14, 1970 requesting that the PBA refrain from naming to its negotiating team any of the last three members appointed to the Police Department, stating as the reason therefor, "This will eliminate any feeling of reprisal, etc., should the present budget situation make it necessary to reduce the number of men on the Police Department," which the PBA alleges is an attempt by the Respondent to dictate the composition of its negotiating team, all of which was alleged to be in a violation of N.J.S.A. 34:13A-5.4(a)(1),(2),(3),(4),(5) and (7) of the Act.1/

A second Unfair Practice Charge was filed with the Commission on April 24, 1980 by the Charging Parties alleging that the Respondent's Mayor had threatened to dismiss the President of the PBA (Lizzano)2/ and, further, that the Respondent's Chief of Police has discriminated against and harassed the President of the PBA (Lizzano) by unilaterally assigning him to "harassing shift assignments" in violation of the notice provision in the collective negotiations agreement, all of which was alleged to be a violation of N.J.S.A. 34:13A-
5.4(a)(1),(3),(4) and (5) of the Act, supra.

It appearing that the allegations of the Unfair Practice Charges, if true, may constitute unfair practices within the meaning of the Act, the charges were consolidated and a Complaint and Notice of Hearing was issued on May 28, 1980. Pursuant to the Complaint and Notice of Hearing, a hearing was held on August 19, 1980 in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. The parties filed post-
hearing briefs by September 25, 1980.

Unfair Practice Charges having been filed with the Commission, a question concerning alleged violations of the Act, as amended, exists and, after hearing, and after consideration of the post-hearing briefs of the parties, the matter is appropriately before the Commission by its designated Hearing Examiner for determination.

Upon the entire record, the Hearing Examiner makes the following:

FINDINGS OF FACT

1. The Borough of Bradley Beach is a public employer within the meaning of the Act, as amended, and is subject to its provisions.

2. P.B.A. Local 50, Bradley Beach Section is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

3. Richard J. Lizzano is a public employee within the meaning of the Act, as amended, and is subject to its provisions.

4. The most recent collective negotiations agreement between the Respondent and the PBA was executed on November 16, 1979 and was effective during the term January 1, 1979 through December 31, 1979 (CP-1). The said agreement was reached as a result of an interest arbitration award dated August 7, 1979 (CP-
3). Negotiations for a successor agreement for 1980 are in progress; the PBA petitioned the Commission for the appointment of an interest arbitrator on December 10, 1979 (R-1).

5. Lizzano has been a police officer with the Respondent since 1978 and has been Chairman of the PBA since January 1979.

6. In December 1979 there were 16 police officers employed by the Respondent, who were in the PBA collective negotiations unit. In order of seniority ranking Lizzano was No. 15 or second from the bottom.

7. Under date of December 14, 1979 the Respondent's Mayor, Leonard W. Riley, who is also the Director of Public Safety, addressed a letter to Lizzano as Chairman of the PBA, which stated:

Since we both know salary negotiations

sometimes can be of a long term nature,

in order that nothing delay the process

and continuity be maintained, I respect-

fully ask the Association refrain from

naming any of the last three members

appointed to the Police Department and that

they not be included as part of the Police

Department negotiating team.

This will eliminate any feeling of reprisal,

etc., should the present budget situation

make it necessary to reduce the number of

men on the Police Department.

Kindly bring this request to the attention

of the Association for their consideration.

(CP-2).

8. Lizzano responded to Mayor Riley's letter (CP-2, supra) in an undated communication, the thrust of which charged that the Mayor was committing an unfair practice by illegally making "...an effort to influence the selection of persons to represent the Bradley Beach Police Department in negotiations..." (R-2).

9. Lizzano testified that, as a result of Mayor Riley's letter of December 14, 1979, supra, he was going to resign as Chairman but did not do so after having been prevailed upon by the other unit members to remain.

10. Article VIII, Section G of the most recent collective negotiations agreement (CP-1) provides that:

The work schedule shall be posted at least

two (2) months in advance, with the under-

standing that the current rotating schedule

be continued and that two months prior notice

of the scheduling be given.

11. In October 1979 Lizzano was successful in challenging a change in his shift through the grievance procedure, citing it as a violation by the Borough of Article VIII, Section G, supra, (CP-4 and CP-5).

12. In February 1980 Lizzano initiated a grievance under the contractual grievance procedure concerning the denial of voluntary shift change between police officers, which was resolved in Lizzano's favor and resulted in a notice to all police officers from Mayor Riley dated March 25, 1980 (CP-6 and CP-8).

13. Extensive testimony was adduced at the hearing with respect to changes in the 1980 shift schedules and a copy of the bi-weekly shift schedules from January 1, 1980 to date was received in evidence as CP-9. Although Lizzano testified as to certain schedule changes made under the direction of the Chief of Police, which affected him in six instances in March and April, and which affected PBA Negotiating Committee members Jose Ortiz and Kenneth Horrocks in one instance each, the Hearing Examiner, after examination of CP-9 and based upon the testimony adduced, finds as a fact that the changes in shift schedules constituted, if anything, arguable violations of the	notice provision of Article VIII, Section G of the collective negotiations agreement, supra.3/

THE ISSUES

1. Did the Respondent Borough violate the Act when its Mayor on December 14, 1979 sent a letter to the Chairman of the PBA requesting that the PBA refrain from naming to its negotiating team any of the last three members appointed to the Police Department?

2. Did the Respondent Borough violate the Act by the conduct of its Chief of Police in the changing of shift schedules of Richard J. Lizzano and the other members of the PBA's Negotiating Committee in March and April 1980, i.e., did the Respondent Borough engage in illegal harassment of the PBA's Negotiating Committee?

DISCUSSION AND ANALYSIS

The Respondent Borough Independently Violated

Subsection (a)(1) Of The Act When Its Mayor

On December 14, 1979 Sent A Letter To The

Chairman Of The PBA Requesting That The PBA

Refrain From Naming To Its Negotiating Team

Any Of The Last Three Members Appointed To

The Police Department

The Commission in North Brunswick Township Board of Education, P.E.R.C. No. 80-122, 6 NJPER 193 (1980) decided that a public employer violated Subsections (a)(1) and (5) of the Act when it refused to negotiate with the majority representative based upon an objection to the composition of the majority representative's negotiating team.

The Commission's most recent statement of the standard for finding an independent Subsection (a)(1) violation is set forth in New Jersey Sports and Exposition Authority, P.E.R.C. No. 80-73, 5 NJPER 550 (1979) where it was stated that:

...It shall be an unfair practice for an employer

to engage in activities which, regardless of the

absence of direct proof of anti-union bias, tend

to interfere with, restrain or coerce an employee

in the exercise of rights guaranteed by the Act,

provided the actions taken lack a legitimate and

substantial business justification... (5 NJPER

at 551) (Emphasis supplied)

Applying the foregoing Commission decisions to the facts in the instant case, the Hearing Examiner finds and concludes that the Mayor's December 14, 1979 letter to the chairman of the PBA, Richard J. Lizzano, tended to interfere with the right of Lizzano and other employees in the collective negotiations unit to serve as members of the PBA negotiating team and thus constituted an independent violation of Subsection (a)(1) of the Act.

In so finding and concluding, the Hearing Examiner has duly considered the statements of the Mayor that he did not intend any illegal purpose or effect in having written the December 14th letter and was motivated to "...eliminate any feeling of reprisal..." in the event that the budget situation made it necessary to reduce the complement of the Police Department (see CP-2). However, a decision on whether or not an unfair practice has been committed must turn on an inquiry as to whether or not the actions of a public employer tend to interfere with, restrain or coerce employees in the exercise of rights guaranteed by the Act.4/ Relying upon North Brunswick Township Board of Education, supra, the Hearing Examiner concludes that the December 14th letter did so interfere.5/6/

Finally, the Hearing Examiner finds and concludes that the Respondent Borough has failed to demonstrate in its proofs that the actions of the Mayor in writing the December 14, 1979 letter were based upon "...a legitimate and substantial business justification..." Clearly, there was no compelling need for such a letter to be written. The composition of the PBA's negotiating team was of no legitimate interest or concern of the Borough. The mere fact that the Mayor may have thought that he was obviating a future problem for the Borough in having to lay off members of the PBA negotiating team does not, in the opinion of the Hearing Examiner, constitute a legitimate and substantial business justification for the Mayor's actions.

Thus, the Hearing Examiner will recommend that, by reasons of having independently violated Subsection (a)(1) of the Act, the Respondent Borough must rescind in writing the statements contained in the Mayor's letter of December 14, 1979 and affirmatively indicate to the PBA that the complement of its negotiating team is of no legitimate interest or concern to the Respondent Borough.

The Respondent Borough Did Not Violate The Act

By The Conduct Of Its Chief Of Police In Chang-

ing The Shift Schedules Of Richard J. Lizzano

And Other Members Of The PBA's Negotiating Com-

mittee In March And April 1980 And Such Conduct

Did Not Constitute Illegal Harassment

The Hearing Examiner finds and concludes that the Charging Parties have failed to prove by a preponderance of the evidence that the Respondent Borough violated the Act by the conduct of its Chief of Police in changing the shift schedules of Lizzano and other members of the PBA's negotiating team in March and April 1980. The Hearing Examiner has found as a fact, based upon an examination of CP-9 and the testimony adduced at the hearing, that the changes in shift schedules constituted, if anything, arguable violations of the notice provisions of Article VIII, Section G of the collective negotiations agreement (see Finding of Fact No. 13, supra, and N.J. Dept. of Corrections, PERC No. 80-132, 6 NJPER 218 (1980).

For the Hearing Examiner to conclude that the conduct of the Respondent's Chief of Police herein constitute illegal harassment under the Act of the PBA's negotiating team, a clear causal connection would have to be established between the pattern of changes in the shift schedules by the Chief of Police and the course of collective negotiations between the PBA and the Respondent Borough. The Hearing Examiner is fully satisfied that no such causal connection has been established. There was no testimony adduced that any of the changes in shift schedules interfered with the course or conduct of the negotiations between the parties. While it is true that collective negotiations have not yet resulted in an agreement for the year 1980, the Hearing Examiner cannot speculate by concluding that the reason therefor was the conduct of the Chief of Police in the changing of the shift schedules of Lizzano and the other members of the PBA's negotiating team.7/

Accordingly, the Hearing Examiner will recommend dismissal of the allegations in the Complaint with respect to the conduct of the Chief of Police in changing the shift schedules of Lizzano and other members of the PBA's negotiating team.

*	*	*	*

Based upon the foregoing, and upon the entire record in this case, the Hearing Examiner makes the following:

CONCLUSIONS OF LAW

1. The Respondent Borough independently violated N.J.S.A. 34:13A-5.4(a)(1) when its Mayor on December 14, 1979 sent a letter to the Chairman of the PBA requesting that the PBA refrain from naming to its negotiating team any of the last three members appointed to the Police Department.

2. The Respondent Borough did not independently violate N.J.S.A. 34:13A-5.4(a)(1), or any other provisions of the Act, by the conduct of its Chief of Police in changing the shift schedules of Richard J. Lizzano and the other members of the PBA's negotiating team in March and April 1980, i.e., the Respondent Borough did not engage in illegal harassment of the PBA's Negotiating Committee within the meaning of the Act.

3. The Respondent Borough did not violate N.J.S.A. 34:13A-5.4(a)(2), (3), (4) and (5) by its conduct herein.

RECOMMENDED ORDER

The Hearing Examiner 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 refraining from sending communications to the PBA with reference to the composition of its negotiating team.

B. That the Respondent Borough take the following affirmative action:

1. Rescind in writing Mayor Leonard W. Riley's letter of December 14, 1979 to Richard J. Lizzano and state affirmatively in writing that the Respondent Borough, its agents and representatives do not intend to interfere with or dictate the composition of the PBA's negotiating team.

2. Post at all places where notices to employees are customarily posted copies of the attached notice marked Appendix "A." Copies of such notice, on forms to be provided by the Commission, shall be posted immediately by the Respondent Borough upon receipt thereof and after being signed by the Respondent's authorized representative, shall be maintained by it for a period of at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent Borough to insure that such notices are not altered, defaced or covered by other material.

3. Notify the Chairman of the Commission within twenty (20) days of receipt what steps the Respondent Borough has taken to comply herewith.

C. That the allegations in the Complaint that the Respondent Borough violated Subsections 5.4(a)92), (3), (4) and (5) of the Act be dismissed in their entirety.

Alan R. Howe

Hearing Examiner

Dated:	September 26, 1980

Trenton, New Jersey