H.E. NO. 90-54 1.
H.E. NO. 90-54
STATE OF NEW JERSEY
BEFORE A HEARING EXAMINER OF THE
PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the Matter of
STATE OF NEW JERSEY,
DEPARTMENT OF HUMAN SERVICES,
Respondent,
-and- Docket No. CO-H-88-213
COMMUNICATIONS WORKERS OF AMERICA,
AFL-CIO, LOCAL 1040,
Charging Party.
Appearances:
For the Respondent, Hon. Robert Del Tufo, Attorney General
(Michael L. Diller, D.A.G.)
For the Charging Party, Michelle Dunham Guerra, Esq.
HEARING EXAMINER'S REPORT
AND RECOMMENDED DECISION
On February 22, 1988, the Communications Workers of America, AFL-CIO, Local 1040 ("CWA") filed an unfair practice charge against the State of New Jersey, Department of Human Services ("State"), alleging violations of the New Jersey Employer-Employee Relations Act ("Act"), N.J.S.A. 34:13A-5.4 et seq., subsections (a)(1) and (2). 1/ The charge alleges that discipline was imposed,
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. (2) Dominating or interfering with the formation, existence or administration of any employee organization."
derogatory statements were made and certain other actions were taken against North Princeton Developmental Center employee Robert Shaub in retaliation for his protected activities as a union shop steward.
A Complaint and Notice of Hearing issued on August 3, 1988. On September 23, 1988, CWA amended the charge to state that subsections (a)(3) and (4) were also violated. 2/ On November 22, 1988, the State filed an Answer to the entire charge denying it violated the Act.
After many postponements and delays requested by both parties, I conducted a hearing on March 9, 10, May 11, 22 and July 25, 1989 at which the parties examined and cross-examined witnesses, presented evidence and argued orally. After extensions, both parties filed post-hearing briefs by November 20, 1989.
Upon review of the entire record, I make the following:
FINDINGS OF FACT
1. The State is a public employer within the meaning of the Act and CWA is a public employee representative within the meaning of the Act.
2/ These subsections prohibit public employers, their representatives or agents from: "(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. Robert Shaub is an RN (Registered Nurse) and head nurse at the North Princeton Developmental Center ("NPDC") and has held that position since August, 1986. He is also the shop steward for CWA's primary level supervisor's unit (representing head nurses, dietitians, cottage training supervisors and head cottage training supervisors) and has held that position since January, 1987 (TA57-58, TB41, TC8). 3/
3. As head nurse, Shaub is the first level of supervision for four LPN's (Licensed Practical Nurses) located in the Dodds, Strecker and Moderate Security Unit Buildings. Head nurses are responsible for the medical care of clients in NPDC's facilities (TB37-39).
4. At the time of the incidents described in the charge, Shaub reported to Nancy Garvey, Supervisor of Nursing Services. Garvey was in the Higher Level supervisor's unit represented by CWA. Garvey reported to Harry Moss, Assistant Director of Nurses. Moss reported to Thelma Ryan, Director of Nurses. The Director of Nurses reported to the Director of Professional Residential Services (TB42-44).
5. Harold Young has been employed by NPDC for approximately eleven years, the last five in his current position of
3/ Transcript citations are as follows: TA refers to the transcript of the proceedings on March 9, 1989; TB - March 10, 1989; TC - May 11, 1989; TD - May 22, 1989 and TE - July 25, 1989. The number(s) following the transcript reference is the page designation(s).
Acting Employee Relations Officer. Prior to that he held the positions of Supervisor of Professional and Residential Services and Director of Residential Living. Before coming to NPDC, Young worked at the Woodbridge State School as Assistant Supervisor of Resident Living.
6. In his capacity as Acting Employee Relations Officer, Young has three primary functions: 1) he enforces Administrative Order 408, the Department of Human Services Disciplinary Action Program (i.e. sees that all supervisor recommendations for discipline are consistent with that Order); 2) he acts as primary hearing officer for first step contractual grievances, and 3) he acts as a consultant and liaison to other management personnel and the Department of Human Services Office of Employee Relations. These duties involve members of all three unions at NPDC: CWA (300 employees), AFSCME (650 employees) and IFPTE (200 employees). Young only hears contractual grievances at the first step. If the grievance is appealed, he represents management at all subsequent levels. In disciplinary appeals, Young represents management up to the Office of Administrative Law (OAL) hearing level where the matter is then turned over to a deputy attorney general, with whom Young works to prepare management's case (TC118-126).
POSTING INCIDENT
7. On July 14, 1987, the Commission issued a decision and order in State of New Jersey, Department of Human Services, P.E.R.C. No. 88-8, 13 NJPER 612 (& 10242 1987)(R-1)("Klein" case). The case
involved certain coercive statements made by administrators in the psychology department of NPDC. As a result of that decision, a Notice was to be posted for 60 consecutive days (R-17).
8. The Commission forwarded the Notice to NPDC's Superintendent Robert Burke, who in turn forwarded it to Young. Young received and posted the Notice on August 30, 1987. After consulting with Robert Harvey, Assistant to the Director of Employee Relations at the Human Services Department, Young placed the Notice next to the door in the Director of Psychology's office. Young removed the Notice on November 4, 1987 (TC126-128, TD4-7, TD78-79, TD114, TE7-8).
9. Shaub was not involved in the Klein case (TB13). In September, 1987, Shaub read an article in a CWA newspaper regarding the Commission's decision and order in that case (TA59, TB45, 49). As a result of that article, Shaub looked for but did not find the Klein posting on the official NPDC employee bulletin boards (TA59, TB49, TB52, TC13).
10. While in Young's office on another matter, Shaub asked Young where the Notice was posted. Young replied that it was posted in a place which "complied with the letter of the law," and when pressed, refused to give Shaub any more specific information. 4/ (TA61, TB50, TC130, TD79).
4/ Young testified that when asked, he told Shaub "the matter had been posted" and that the conversation then ended (TC130-131, TD79). Although there is little relevant difference between the two versions, I credit Shaub's testimony on this incident. His demeanor while on the witness stand appeared more forthright and candid than did Young's.
11. When Shaub could not find the posting at NPDC, he telephoned George White, CWA representative at Local 1040. White asked Shaub to make a conscious effort to look for the Klein posting on NPDC's locked bulletin boards (TA62, TB53-54).
12. Sometime after Young's conversation with Shaub, Young told Harvey that Shaub asked him where the Klein Notice was posted (TE8-9). Approximately one month later, Harvey received a copy of a letter from CWA attorney Tara Levy, stating that CWA was contesting the sufficiency of the posting (TE9, TE18-19). Harvey then telephoned Young to reconfirm the dates and placement of the posting and also to inform Young that CWA had complained about it. Harvey did not specify whom at CWA made the complaint. No other person except Shaub asked Young about the posting (TD80-81, TE18).
13. On February 4, 1988, at approximately 1:00 p.m., Commission Chairman James Mastriani convened a meeting regarding the sufficiency of the posting. In attendance were Shaub, Harvey, Young, CWA representatives Bob Yeager and Bruce Fralinger, Don Klein (the employee involved in the underlying charge) and attorneys Maureen Adams, D.A.G., (spokesperson representing the State) and Tara Levy (spokesperson representing CWA) (TA60, TB55-56). The meeting was informal, with all parties seated around a table (TC131). No stenographic transcription was taken (TB55).
14. Shaub spoke at the meeting about his conversation with Young regarding the posting and his search of NPDC's bulletin boards (TA62, TB62, CP-23, TD81). On October 5, 1987, in preparation for
the conference with Chairman Mastriani, Shaub executed a certification outlining his inability to find the Klein posting (CP-23, TC20). This certification was submitted to the Chairman and State representatives prior to the conference, and was referred to during the meeting (TC11, TC20, TD81). At times during the meeting, the parties met separately out of Shaub's presence (TB65, TC22, TC132-133).
15. No settlement was reached at the February 4 meeting (TB64). By letter dated February 23, 1988, Chairman Mastriani directed the State to post either his letter or the original July 14, 1987 Notice on six employee bulletin boards at NPDC for not less than fourteen days and to provide confirmation of compliance (CP-1). By letter dated March 3, 1988, Adams informed Chairman Mastriani that the original Notice would be posted as directed for the period March 4 to March 18, 1988 (R-2).
WAGNER DISCIPLINE
16. Nancy Wagner McCoy5 / is a head nurse at NPDC (TC36). Shaub is her shop steward (TA63). In February, 1988, Wagner was given a one-day suspension for abuse of sick leave (TC36). The majority of Wagner's absences were due to her daughter's chronic, severe illness (TC42). These absences were without pay because Wagner had exhausted her allotted sick leave (TC48).
5/ Subsequent to the incidents described Wagner married. She will be referred to herein as "Wagner."
17. Wagner appealed her one-day suspension. On the afternoon of February 3, 1988, a disciplinary appeal hearing was scheduled (TA64, TD11, TD18). Prior to the beginning of the hearing, Young and Fralinger met to discuss a settlement of Wagner's case (TA64, TC14, TD12). They tentatively agreed that in return for Wagner dropping the appeal of her discipline, Ryan would try to work with Wagner by adjusting Wagner's schedule to accommodate her need to attend her sick child. In addition, Wagner would be required to supply medical documentation each time she was out due to her child's illness and a prognosis of her child's condition (TA64, TB69, TC13-14, TC22, TC24-25, TC34, TD13-14).
18. After Fralinger and Young met, Young discussed the proposal with Ryan, while Fralinger spoke with Shaub (TC24, TD16). Fralinger asked Shaub to speak with Wagner and encourage her to accept the settlement (TC24). Shaub met with Wagner and then all three (Shaub, Wagner and Fralinger) met to further discuss the proposal (TC25). After each side caucused, all parties (Ryan, Young, Shaub, Fralinger and Wagner) met together in the hearing room with the hearing officer waiting outside. More discussion regarding the settlement agreement ensued. Both Fralinger and Shaub spoke on Wagner's behalf. The settlement was agreed to by all parties. Wagner signed the withdrawal of her appeal and Ryan promised to try to alter Wagner's schedule to accommodate Wagner's child's illness (TA64, TB68-69, TC25, TD16).
19. On February 4, 1988, Ryan called Wagner into her office and told Wagner that she was rescinding the previous day's agreement. Ryan explained that she had subsequently spoken with the other nurses in Wagner's unit and that they were unwilling to accommodate Wagner's schedule because Wagner was undependable (TC37-38, TD19).
20. On the same day, Ryan telephoned Young to tell him why she did not think she could live up to the previous day's agreement. This conversation occurred in the morning (TD20). Young suggested that Ryan give Wagner the opportunity to document her need for the schedule accommodation, and that, if necessary, they would deal with her peers' complaints at a later date (TD20).
21. After her conversation with Ryan, Wagner telephoned Shaub and told him that Ryan had rescinded the agreement (TA65, TC38). Shaub called Young. Young would not speak with Shaub about the matter, but instead suggested that Shaub have Fralinger telephone him (TA66, TD21-22). When Fralinger telephoned Young, Young related Ryan's concerns about the agreement. Fralinger expressed his displeasure with Ryan's decision to reverse an agreement made the day before and asked Young if something could be done. Young suggested that Wagner provide the medical documentation requested and that he would deal with the other nurses before accommodating Wagner. Fralinger asked Young to reduce their understanding to writing (TD22).
22. After his conversation with Fralinger, Young called Ryan and related what he had agreed to do. Young told Ryan he was going to draft a memo and Ryan agreed to its substance. Young then hung up, wrote the memo (CP-2) and left for the afternoon meeting with Chairman Mastriani regarding the Klein matter (TD23).
23. CP-2 is dated February 3, 1988.6/ In its entirety it states:
As you know on February 3, 1988, Ms. Wagner withdrew her appeal of a one day suspension for excessive absenteeism. Prior to the hearing, Mr. Bruce Fralinger, Ms. Wagner, Mr. Shaub, you and the writer discussed possibilities to help Ms. Wagner avoid future discipline.
You indicated a positive acceptance to a suggestion from her union representative that if Ms. Wagner provided you with acceptable medical justification regarding her need to be with her sick child, you would attempt to accomodate this by allowing her to adjust her schedule.
On February 4, 1988, you contacted the writer and stated that you may have over-committed yourself. You were concerned that Ms. Wagner's absenteeism if it continued would have untoward effects on her co-workers. This is a legitimate concern.
The writer recommends that you have Ms. Wagner supply you with medical documentation that she is medically required to attend to her sick child. If she supplies acceptable justification of a special need, the writer
6/ Young testified that the date on the memo was an error and that it was actually written on February 4, 1988 (TD21). Shaub testified that he received two different copies of CP-2 -- one with the date February 3 and one with February 4 (TC70). Since there is nothing in the record to contradict Young's testimony and since the memo speaks to events which took place on February 4 (which Young obviously could not have known until then), I credit Young's testimony on the date the memo was written and find CP-2's date to be an error.
recommends that you attempt to accomodate this need as best you can.
Please keep this office advised. Thank you.
Both Shaub and Young agree that CP-2 reflects the terms of the February 3 agreement (TB74, TD24).
24. On September 9, 1988, Wagner was again suspended without pay for excessive absenteeism. The Preliminary Notice of Disciplinary Action alleged that Wagner was absent sixteen days without pay between April 6, 1988 and May 26, 1988. Young investigated Wagner's absences after the disciplinary request was submitted in light of the February, 1988 agreement. He found that most of the absences cited in the disciplinary request were for Wagner's personal illness or for when she had a doctor's appointment for her child that was not during her shift. He also found that Wagner had not supplied the requested medical documentation. Accordingly, he decided to go ahead with the discipline (TD27).
A ten-day suspension was imposed which Wagner served during October and November, 1988. Wagner attempted to appeal the suspension but the appeal was filed too late to be considered (R-15, TA-16, TA67-68, TB75-76, TC39-40, R-19, TD25-26).
THOMPSON'S STATEMENTS
25. Dr. Frank Kim is a Staff Physician Specialist I at NPDC (TA21). Head nurse Shaub reports to Kim regarding medical matters in his unit (TA22). Kim has direct authority over Shaub as to aspects of patients' medical treatments but has no administrative supervisory authority over him (TA31).
26. In January, 1988, Kim attended a daily morning meeting with other staff physicians, Ryan, some head nurses and other staff chaired by NPDC's Medical Director, William Thompson (TA22). 7/ At the end of that meeting, Thompson told those assembled that Shaub was a "union agitator" and was "dangerous" (TA24). 8/9/
27. Kim did not know Shaub was a union representative (TA27, TA39).
28. Two days after the morning meeting, Kim told Shaub about Thompson's statements (TA28, TA133-134). Kim decided to tell Shaub so that Shaub might "restrain" himself and retain what Kim thought was Shaub's good reputation among his colleagues (TA28, TA38).
29. Other NPDC employees, including head nurses, also told Shaub that they had heard about Thompson's statements (TC16-18).
30. As a result of Thompson's statements, Shaub was very cautious in his role as shop steward in speaking out against things
7/ The Medical Director is responsible for all health services at NPDC including physician care, physiotherapy, occupational therapy, x-rays and laboratories. He has no direct supervisory authority over nurses (TA30).
8/ Thompson made no threats against Shaub nor did he solicit Kim to intimidate or take action against Shaub for his union activity (TA35, TA42).
9/ Kim testified that it was his "impression" that these statements had been made earlier at a higher level staff meeting which included NPDC's Superintendent Burke. Staff meetings were among employees at the Director's level and above. Kim was not present at that meeting (TA24). Young testified that Burke denied making the statement that Shaub was dangerous (TD68), TA24, TA25, TA33-34, TA48-49, TA52).
he felt were unfair. The statements, however, did not affect Shaub's decisions to file necessary grievances on behalf of unit members (TB77-78). 10/
OTHER STATEMENTS
31. On February 17, 1988, Shaub filed five grievances relating to his February 13 and 14, 1988 absences (See Findings of Fact 42 et seq., infra , R-10, R-11, R-12, R-13, R-14). On February 29, 1988, Shaub filed a grievance alleging harassment and discrimination based on union activity (R-9). All six grievances hearings were held in consecutive order on the afternoon of April 26, 1988 (TA149, TD53, R-4).
32. During his summation to the hearing officer following his presentation of management's case in the grievance hearings, Young stated that Shaub "felt that the world revolved around him" and that "the sun rose and set on him" (TA150, TA154, TA156, TD56). Young also stated, "Shaub gets up in the morning and says, 'How can I nail my supervisors today?'" (TA151, TA154).
33. As a result of his February 13 and 14, 1988 absences, Shaub received an official reprimand (see Findings of Fact 42 et seq, infra for more detail). On the morning of April 26, 1988, Shaub had his disciplinary action appeal hearing before Hearing Officer Barry Knoth. Young presented management's case and Fralinger represented Shaub (R-4). As the hearing began, Young said
10/ Shaub was an active shop steward during this period (TC32-33).
to Knoth, "We have six grievances to hear yet." Fralinger replied, "We won't get through all those today." Young then said, "Oh yes we will," and, pointing at Shaub continued angrily, "this guy filed six grievances a day" (TA149, TA154, TD113).
34. During his summation in the disciplinary appeal hearing, Young referred to Shaub's actions as "audacious" (TA151, TD54-56).
35. On May 19, 1988, Shaub represented another employee during an investigation by Young. After the investigation, the employee left and Shaub and Young discussed general matters. During the discussion Young stated, "My father was right, the worst thing that ever happened to the State was the unions" (TA156-158). 11/
36. In late September or early October, 1987, Young called Shaub regarding an LPN grievance form which stated that Robert Shaub was the representative. LPN's are in an AFSCME unit and are not represented by Shaub. Young accused Shaub of interference with other units. Shaub suggested that maybe there was a mistake and that the employee in question meant to name Shaub's wife, who was active in AFSCME as the representative. In response Young stated,
11/ Young strenuously denies making this statement. He argues that the statement does not make sense since his father was a member of the IBEW and a number of his siblings are members of CWA (TD57). While that may be true, I do not find it inconceivable that such a remark could be made. Moreover, as stated earlier, I credit Shaub's testimony over Young's as Shaub appeared more candid and forthright on the stand.
"What are the Shaub's trying to take over the institution?" (TA158-159). 12/13/
37. Prior to February, 1988, Shaub was never disciplined (TA169, TB5). His supervisor, however, frequently recommended discipline that was not approved (TB5-6, CP-12, CP-13).
POLICIES AND PROCEDURES
38. The policy concerning Requested Absences from Work for the nursing service in effect at NPDC in February, 1988 was as follows:
1. All call-offs should be made at least 1 hour prior to shift starting time, whenever possible.
2. Call-offs are to be made to:
2.1 Radio Nurse for VNS
2.2 SON or her designee at Garrison, extension 591 for Garrison call-offs
3. Request for time to be used must be given at the time of the call-off, i.e., Administrative Leave, Vacation Day, Compensatory time, day without pay.
4. Weather/Snow call-offs:
4.1 Call should be made as in No. 2 above.
4.2 Request for time to be used as in No. 3 above.
4.3 Authorized person receiving the call should:
4.31 Suggest the employee try to come in
about 2 hours later.
12/ Young does not recall making this statement (TD56). Again, for the reasons previously stated, I credit Shaub's testimony.
13/ There were other statements in the record regarding Shaub's protected activity. However, since these were not plead as independent violations and since they fell outside the six-month statute of limitations, I did not consider them.
4.32 Ask what kind of time is to be used
if unable to get in.
5. Administrative Leave, Sick Time, Vacation Time, Compensatory Time will be temporarily granted by the authorized person receiving the call. All such time must be verified with the Timekeeper before it can be paid for.
6. Sick Time will be granted for sick calls only - this will include personnel illness, accident or exposure to contagious diseases, death in immediate family, or attendance upon a member of the immediate family who is seriously ill, whose spouse is hospitalized due to pregnancy.
6.1 Written, signed documentation by a physician will be required within 5 days when sick leave is requested for:
6.11 exposure to a contagious disease
6.12 attendance upon a family member
who is serious ill.
6.13 hospitalization of pregnant spouse,
except for day of delivery.
7. Administrative Leave requests and Compensatory Time off requests should be submitted at least 4 weeks prior to the time requested, except in emergency cases.
8. Administrative Leave, Compensatory Time and Vacation Time will be granted according to the needs of the Nursing Department.
9. Vacation Time:
9.1 Vacation time requests are to be submitted between March 1 and March 15 of the current year.
9.2 Employees will be notified by April 15 whether the request is granted or not.
9.3 Requests for vacation time prior to April 15 will be submitted by December 1 of the preceeding year.
9.4 Employee should receive response by December 22 for requests prior to April 15.
9.5 Conflict between vacation times will be resolved according to state seniority.
9.6 Where the vacation schedule is established, but there is a need to adjust the schedule due to unforeseen pressure of work or an emergency - after voluntary changes are made, the employees named and required to make a change will be in inverse order of their state seniority, except that consideration will be given to a substantial committment made by the employee involved.
(TA79, TD93, CP-3).
39. By memo dated January 15, 1987, to Day Tour Head Nurses--VNS from Ryan, the following "agreement" was set forth for weekend coverage of day tour head nurses:
1. The RN will assume her scheduled weekend assignment.
2. On a mandatory basis there will be a back-up nurse scheduled to be available every weekend.
3. The back-up nurse will be the nurse scheduled for the next weekend.
4. When the scheduled nurse calls off sick, she will:
a. Call the back-up nurse.
b. Call the HN on duty to report her call-off, and coverage for the tour.
5. In the event the back-up nurse is unable to cover the weekend -- follow the rotation schedule for the second back-up nurse.
6. The original assigned Head Nurse who called off duty during her weekend to work will work the next weekend -- thus maintaining the rotation schedule.
Each day tour head nurse was aware of this "agreement" which was in effect in February, 1988 (TD107, TE28).
40. In relevant part, the New Jersey Department of Human Services' Disciplinary Action Program (Administrative Order 4:08), in effect from January 1, 1981 to the present, states:
FEBRUARY 13 AND 14 ABSENCES
41. Shaub's normal work hours are 7:00 a.m. to 3:00 p.m., Monday through Friday and occasional weekends as assigned on a rotating basis. The weekend rotation schedule had been in effect since Shaub started at NPDC. The supervisors of each tour of nurses draft the monthly schedules which are submitted to the Director of Nurses for final approval. Tour supervisors have authority to make changes in the schedule (TA70, TB89-90).
42. Shaub's wife is an LPN in the Garrison Building at NPDC. In April 1987, she began working the same shift as her husband. This caused a conflict when their weekend rotation assignments coincided because of the unavailability of care for their two young children. The Shaubs worked out an arrangement with Moss and Mrs. Shaub's supervisor, Jody Mount, which attempted to avoid weekend scheduling conflicts (TA71-73).
43. On January 26, 1988, at noon, the RN's schedule for February was posted on the bulletin board. Shaub received a copy of the schedule at 3:00 p.m. Normally schedules are posted on the 15th of the preceding month (TA74).
44. Both Shaub and his wife were scheduled to work the weekend of February 13 and 14, 1988. On the morning of January 28, 1988, Shaub spoke with Ryan and Garvey about the conflict. He explained that since his wife used her time last year when there was a weekend scheduling conflict, it was his turn this year and therefore he would not be able to work that weekend (TA74-75, TB95-96, TE30-31).
45. Ryan did not offer to change Shaub's schedule.14/ Ryan suggested Shaub find a babysitter. Shaub explained that normally his or his wife's parents would take care of his children but on the weekend in question both were going to be away. Shaub
14/ Garvey testified that Ryan told Shaub he could work nights to avoid the problem (TE31). No other testimony in the record corroborates that statement. Since the State did not offer Ryan as a witness, I do not rely on it.
asked Ryan if she knew of anyone who would babysit at 6:00 a.m. as that was the time both he and his wife had to leave for work. Ryan did not respond to Shaub (TA75-76, TB96-97, TC6-7, TC18, TE-31-32).
46. Shaub tried to find a replacement for the weekend. He spoke with all other RN's in the Visiting Nurses Service and none were able to switch weekends with him. 15/ (TA75, TB95, TC18).
47. Between January 28 and February 12, 1988, Shaub spoke with Ryan at least two other times and told her he would not be able to work on February 13 and 14, 1988. Shaub asked Ryan if she could find coverage for that weekend. Ryan did not respond (TA76, TB98).
48. On February 12, 1988, at 9:30 a.m., Shaub telephoned NPDC and spoke with Garvey. He stated he was "calling off" for his shifts on February 13 and 14 and was requesting emergency vacation for those days. 16/ Garvey denied the vacation request as unacceptable because Shaub was the only one scheduled and because she was unable to replace him at that time (TE4). At 10:15 a.m. that day, Shaub called back and said he had fulfilled his obligation
15/ Despite his efforts, Shaub testified that he believed it was not his responsibility to find coverage for the weekend (TA81). He cites a memo written by him to Patrick Crowley, Personnel Director, dated April 28, 1988, allegedly confirming a conversation with Crowley wherein Crowley stated that if an employee requests time off it is not their responsibility to get a replacement (CP-4). Although I have found Shaub to be a forthright witness, I do not give much weight to this document because of its self-serving nature. Neither party has proven the existence of a policy regarding replacement responsibility.
16/ On February 16, Shaub put his vacation request in writing. No response was received (CP-8, TB101-102).
to get a replacement by leaving a message with the husband of the next RN on the rotation list. Garvey told Shaub it was his responsibility to find a replacement (TA76-78, TB99-100, TC7-8, TE32-35. CP-21). Shaub did not work and was not paid for February 13 and 14, 1988 (CP-9, TA102).
49. On February 16, 1988, Garvey served Shaub with a form "105," Request for Administrative Action, stemming from his weekend absences (CP-5, TA90-94, TB101-103, TE36-37). On the form, Garvey reiterated the sequence of events surrounding Shaub's absence, beginning with his phone call on February 12. Along with form 105, Garvey filled out a form "106," Request for Corrective or Disciplinary Action, and submitted both forms to Young. Form 106 specifies the offense as Code A-2, "absent from work as scheduled without permission but with giving proper notice of intended absence." The requested penalty was "counselling" (CP-6, TA95-97, TB103, TD36-37, TE39). Form 106 was also signed by Ryan indicating her agreement with its specifications (TA96, TE40).
50. On February 19, 1988, Young completed a Review of Recommended Corrective or Disciplinary Action form regarding Shaub's absences. In pertinent part it stated:
Approved charge (offense/cause): Absence from work as scheduled without permission and without giving proper notice of intended absence (A1) and violation of procedure (E1).
Approved specification: On February 12, 1988 you telephoned the SNS stating you would be unable to work your scheduled rotation weekend of 2/13 and 2/14, 1988. You stated you had a babysitting problem. Your request for leave was denied. You were informed that it was your
responsibility to come to duty as scheduled or arrange for a replacement. You failed to find a replacement and did not arrive for duty.
The approved action was an official reprimand (CP-7). Shaub was served with the Notice of Official Reprimand on February 26, 1988 (R-3). 17/
17/ Young claims he changed the charge from "with giving proper notice" to "without giving proper notice" because when Garvey spoke with Shaub on the 12th, she indicated that his emergency vacation request had been denied. Therefore, Young reasons, she expected Shaub to come to work and since he was expected to come to work and did not, he could not have given proper notice (TD38-39). I do not credit this explanation. It makes no logical sense. Garvey knew Shaub was not coming to work on the 13th and 14th; he had been telling everyone that for weeks. He called in twenty-one hours before his shift, which is clearly more than the one hour stated in the Requested Absences from Work policy. Under Young's theory, the only way notice could be proper is if the absence is approved. The first part of the offense, "absent from work without permission ," already contemplates the approval aspect. Accordingly, since I do not credit Young's explanation of the change from A2 to A1, and since there is substantial evidence in the record from which to infer anti-union animus on Young's part (see Analysis, infra ), I find that hostility toward Shaub's exercise of his protected rights was the reason Young increased Garvey's recommended charge and penalty.
In addition, I discredit Young's explanation of why he added an E1 (violation of procedure) charge to Shaub's discipline. Young testified that this charge was added because Garvey told him there was a policy in effect which stated that if a head nurse needed to call off for their weekend rotation, that nurse was responsible to get someone to cover for them. Since Shaub did not get his own coverage, he allegedly violated E1 (TD38). Again, this explanation does not make sense. The "policy" that Young refers to is no more than an agreement between the day tour head nurses. The only reference to calling off from the weekend rotation is when a nurse calls off sick. That was not the situation in this case. Even if the sick call off procedure applies, the agreement states that
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51. Prior to completing CP-7, Young reviewed documents submitted by Garvey along with CP-5 and CP-6 and spoke with Garvey about the incident (TD37). Included in the packet of documents were the call-off log for February 12, 1988, (CP-21) and two handwritten memos to Garvey from Gay Stenger and Sandra Suntato, both RNs (R-20 and R-21, respectively). Stenger stated that she had offered to work for Shaub if he would work for her on April 2 and 3, 1988, but that Shaub declined this offer. Suntato stated that she witnessed Shaub ask Whalen to work that weekend but that Whalen said she could not. Suntato also mentioned that Shaub had asked her to work for him but that she was unable to do so. Young interviewed Stenger and Suntato but did not question Shaub regarding the incident (TD112).
52. On February 26, 1988, Shaub appealed the official reprimand (TB105, R-4). A departmental hearing was held on April 26, 1988, before Barry Knoth, Hearing Officer. Knoth issued his decision on May 12, 1988, sustaining the charges and the penalty imposed (R-4). Shaub appealed that decision to the Merit System
17/ Footnote Continued From Previous Page
the nurse's duty is to telephone the back-up nurse and then report the absence and the coverage to the supervisor on duty. Shaub telephoned the back-up nurse, was unable to reach her and left a message. He then called in and told this to Garvey. At the time he called in, it was not clear whether the back up nurse was unable to cover the weekend or not. Accordingly, I discredit Young's explanation of why he added an E1 violation to Shaub's discipline charges. Since there is other evidence to prove Young's anti-union animus (see Analysis, infra ), I find that Young added the E1 charge based on his hostility toward Shaub's exercise of his protected rights.
Board (TB113). On August 2, 1988, Eugene McCaffrey, Sr., Commissioner of the Department of Personnel, determined that Shaub's appeal did not meet the Board's standard for reviewing final departmental determinations of minor disciplinary actions and therefore denied further hearings (R-5).
OTHER LEAVE SITUATIONS
53. On April 21, 1987, at 8:00 p.m., Head Nurse Vivian Titus called off requesting vacation days for a family emergency. Her shift was 7:00 a.m.--3:00 p.m. and she expected to return to work on April 28. Jonetta Tabor took the call (CP-15, TB25). Titus was not disciplined for this absence (TB35).
54. On June 15, 1987, at 2:35 p.m., Head Nurse Gilbert called off requesting that her vacation be moved up to start for her 8:00 a.m.--4:00 p.m. shift on June 16, 1987. Nancy Garvey took the call (CP-16, TB26). Gilbert subsequently used a sick day to cover this absence (TD60). Gilbert was not disciplined for this absence (TB35).
55. On June 23, 1987, at 1:50 a.m., Titus called off saying that she had no power in her house due to a storm and requesting that a vacation day be used to cover her absence on the 7:00 a.m--3:00 p.m. and 3:00 p.m.--11:00 p.m. shift. Fenwick, RN, took the call (CP-17, TB26). On June 24, 1987, Titus submitted a written request for a vacation day to cover her absence on June 23 (CP-27). Initially, Titus was given an unauthorized absence. She filed a grievance and Young was the hearing officer. During the
hearing, Young determined that when Titus called in, the supervisor did not indicate whether or not vacation time would be approved. Accordingly, Young overruled the supervisor and directed that Titus be given a vacation day (TD60, CP-26). Titus was not disciplined for this absence (TB35).
56. On September 29, 1987, at 5:45 p.m., Fenwick called off requesting vacation time to cover her 11:00 p.m.--7:00 a.m. shift. Stenger took the call (CP-18, TB27). Fenwick was not disciplined for this absence (TB35).
57. On December 15, 1987, at 5:15 a.m., Head Nurse McClendon called off requesting an emergency vacation day to cover her 7:00 a.m.--3:00 p.m. shift. Fenwick took the call (CP-19, TB27-28). McClendon was not disciplined for this absence (TB35).
58. On January 11, 1988, at 8:45 p.m., Stenger called off requesting an emergency vacation day to cover her 3:00 p.m.--11:00 a.m. shift on January 13. Suntato took the call (CP-20, TB28). Stenger was not disciplined for this absence (TB35).
59. On March 24, 1988, at 9:25 a.m., Tabor called off requesting an emergency vacation day to cover her 3:00 p.m.--11:00 p.m. shift. Garvey took the call and informed Tabor that she was the only one scheduled and that therefore she could not approve the request or agree to schedule it as excused (CP-22, TB29). The emergency vacation day was subsequently approved by Tabor's superiors (CP-24, CP-25, TD59). Tabor was not disciplined for this absence (TB35, TD102).
ANALYSIS
CWA asserts that the State reneged on the Wagner settlement and disciplined Shaub in retaliation for Shaub's protected activity and participation in a Commission compliance conference. CWA also contends certain statements made by higher level management and Young interfered with, restrained and coerced Shaub in the exercise of his rights. 18/
THE (a)(3), (4) and (1), DERIVATIVELY, VIOLATIONS
Whether an employer illegally discriminates in retaliation for protected activity requires a charging party prove that protected activity was a substantial or motivating factor for the employment action. In re Bridgewater Tp., 95 N.J. 235, 244 (1984). The charging party must show it engaged in protected activity, the employer knew about the activity and was hostile toward the exercise of protected rights. If the charging party proves that hostility toward exercise of protected rights was a substantial or motivating factor in the employer's action, the burden shifts to the employer to show the action would have occurred absent protected activity. The employer's affirmative defenses need not be considered unless the charging party has proved, on the record as a whole, that anti-union animus was a motivating or substantial reason for the action.
18/ CWA's evidence was directed only to its charge that the State violated subsections 5.4(a)(3), (a)(4) and (a)(1) (derivatively and independently) of the Act. It did not present facts to prove a 5.4(a)(2) violation. I therefore recommend dismissal of the Complaint as it relates to that subsection.
Shaub was an active shop steward for two years. He filed many grievances and represented other employees in matters before management, particularly involving Young as Acting Employee Relations Officer. In addition, Shaub actively participated in a Commission compliance conference concerning an unfair practice committed by NPDC. This included providing relevant information and submitting an affidavit. Accordingly, I find that Shaub generally engaged in protected activity, and specifically engaged in the type of activity contemplated by subsection (a)(4) of the Act. I also find that the employer knew about Shaub's activity.
Shaub claims that anti-union animus was the substantial or motivating factor behind the official reprimand and docking he received for his February 13 and 14 absences. Garvey charged Shaub with being absent from work as scheduled without permission but with giving proper notice of intended absence. The initial discipline recommended by Garvey, and approved by Director of Nurses Ryan, was a counselling. Shaub was docked because he did not work the two days, and Garvey did not permit him to use vacation time. I find that the charging party failed to prove that anti-union animus was the motivating factor behind Garvey's discipline recommendation or denial of vacation. There is no nexus between Shaub's protected activity and Garvey's action. She was not involved in the Klein posting incident nor are there any statements in the record attributed to her which indicate an anti-union attitude. While Garvey is a supervisor and Shaub is a shop steward, this is not
enough to prove illegal hostility. In addition, in a leave situation similar to Shaub's, Garvey also denied Jonetta Tabor emergency vacation leave when Tabor was the only RN scheduled. It was the higher level supervisors, not Garvey, who eventually granted Tabor's request and who failed to discipline her or charge her with giving improper notice of intended absence.
Garvey's recommended discipline was submitted to Young. Young increased the severity of the charge to allege that Shaub was absent from work as scheduled without permission and without giving proper notice of intended absence. He also added the charge of violation of procedure and imposed the greater penalty of an official reprimand. As I have already found, Young's explanation for the increase was unsupported and illogical.
Ten days before his absences, on February 4, Shaub spoke out against NPDC, and specifically Young, at a Commission inquiry into the sufficiency of NPDC's posting in another hotly-contested unfair practice. In fact, it was Shaub who, a few months earlier, had initiated the CWA's compliance complaint when he could not find the posting on official bulletin boards. Young and others in management knew Shaub was the only one asking about the posting. Young clearly exhibited his unhappiness and hostility toward Shaub when Shaub asked him about the posting location.
Young also exhibited hostility toward Shaub in numerous statements about Shaub's activities. Young said Shaub felt "that the world revolved around him," and "that the sun rose and set on
him"; that "Shaub gets up in the morning and says, 'How can I nail my supervisors today?"; that Shaub's actions were "audacious"; and that "the words thing that ever happened to the State was the unions." Young also questioned both Shaub and his wife's activities as union representatives by asking, "What are the Shaubs trying to take over the institution?"
Under all of the circumstances in this case, I find that Young's increased discipline of Shaub was motivated by anti-union animus. Prior to the posting incident, Young never approved discipline for Shaub. In the Klein matter, Shaub went out of his way to become involved in a situation he had nothing to do with and this annoyed Young. It was Shaub's investigation that caused Young and other NPDC management representatives to have to appear before the Commission to explain their actions. I find that this event, coming just two weeks before Shaub's absences, motivated Young to discriminate against Shaub in issuing his harsher discipline.
Further, I find that Young's statements evidence his anti-union attitude. While it is true that these statements were made after he increased Shaub's discipline, I nevertheless infer from all of the circumstances that this attitude existed when the action was taken. Standing alone the bulk of Young's statements are no more than personal attacks or unflattering remarks about Shaub. However, when viewed together with the totality of the evidence, I believe they show a pervasive anti-union attitude that motivated Young to arbitrarily increase Shaub's discipline.
I find that anti-union animus was not, however, the motivating factor in Young's alleged revocation of the Wagner settlement. It does not appear that Young actually reneged on the initial agreement. The substance of his conversation with Fralinger and the follow-up memo essentially contain the same terms as were agreed to at the grievance hearing. While Young acknowledges Ryan's concerns, he continues to assure the union that they will try to accommodate Wagner's schedule if she supplies the needed medical documentation. Accordingly, I do not find that Young took any action which would be construed as discrimination. Even if Young did alter the agreement, I do not find any nexus between that action and Shaub's protected activity. Shaub's connection to the Wagner grievance was tenuous at best. Most of the discussions about this incident took place between Young and Fralinger. Shaub was only peripherally involved. Moreover, his testimony at the Commission compliance conference did not occur until after the Wagner discussions. I recommend that the Commission dismiss that portion of the Complaint which alleges NPDC violated the Act when it rescinded the Wagner agreement.
Having found that the charging party proved anti-union motivation in the increase of Shaub's discipline, the burden shifts to NPDC to show that action would have occurred absent Shaub's protected activity. As I have already stated (See footnote 17), Young's explanations for the additional charges and increased penalty are inadequate. I find no sustainable justification for
Young's determination that Shaub's notice of intended absence was improper or that Shaub violated the weekend rotation call-off "procedure." Based on the proximity of the action to the protected activity, and on statements which indicate a general anti-union attitude, I find Young's motives illegal. Accordingly, I find Young would not have taken that action absent Shaub's protected activity.
I also recommend that the Commission find Young violated subsection (a)(4) of the Act. As I have already found, Young's discrimination against Shaub was based in large part on Shaub's participation (giving information and submitting a formal affidavit) in a Commission compliance conference.
THE INDEPENDENT (a)(1) VIOLATIONS
An employer independently violates subsection 5.4(a)(1) if it engages in activities which 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. New Jersey Sports and Exposition Authority, P.E.R.C. No. 80-73, 5 NJPER 550 (& 10285 1979). CWA contends that the statements made at an administrative staff meeting in January, 1988, as well as the statements made by Young during the processing of the appeal and grievance related to Shaub's discipline had a tendency to interfere with Shaub's protected rights.
I find that the statements related by Thompson at the January meeting that Shaub was a "union agitator" and was "dangerous" did not violate (a)(1). It is not clear who actually
uttered those statements, that is, whether they were made by Thompson or whether he was merely passing along what someone else had said. More importantly, the statements were not made directly to Shaub or in the presence of any other bargaining unit representative. The only way Shaub found out about them was because someone who was at the meeting and who was not Shaub's supervisor decided to tell him several days late. In making the statements, Thompson did not issue threats against Shaub nor did he solicit Kim to intimidate or take action against Shaub because of his union activity. When Kim related the statements to Shaub, he also did not issue threats. While the statements may have made Shaub more cautious in speaking out against things he felt were unfair, there is nothing to indicate that he stopped being an active shop steward. In fact, Shaub testified that the statements did not affect his decisions to file necessary grievances on behalf of unit members. It appears to me, based on all the facts in the record, that Shaub is a savvy and confident union representative who is not easily intimidated. Accordingly, I find that the remarks made by Thompson at the January meeting did not have a tendency to interfere with Shaub in the exercise of his protected rights.
I also find that the statements made by Young during the grievance hearing and appeal of Shaub's discipline did not violate subsection (a)(1). A public employer is within its rights to comment upon those activities or attitudes of an employee representative that it believes are inconsistent with good labor
relations. Black Horse Pike Regional Bd. of Ed ., P.E.R.C. No. 82-19, 7 NJPER 502 ( & 17223 1981). Young addressed his remarks to a hearing officer in an effort to convince him of management's position in the hearing. While Shaub was in the room, the remarks were not made directly to him. Further, the remarks contained no threats. As CWA acknowledges in its post-hearing brief, taken alone, the statements "may not be viewed as overly coercive." (Post-hearing brief p. 37).
I specifically reject CWA's arguments that these merely unflattering statements become violative of the Act because they were said in a grievance hearing. Most of the remarks were no more than personal attacks on Shaub which addressed why he was absent on February 13 and 14. This was the subject of the grievance hearing. The remarks did not comment on Shaub's filing of the grievances or his right to pursue them. They did not intimate that some action would be taken against Shaub in the future if he were to file more grievances. There is nothing in the record to suggest that these remarks affected Shaub in any way (other than to get him angry). Quite the contrary, he continued to be a zealous shop steward who vigorously represented his bargaining unit members. Accordingly, I find no independent (a)(1) violations and recommend that the Commission dismiss that portion of the Complaint.
CONCLUSIONS OF LAW
1. The State of New Jersey violated subsections 5.4(a)(3), (4) and (1), derivatively, of the Act when Acting
Employee Relations Officer Harold Young increased Head Nurse Robert Shaub's discipline for his February 13 and 14, 1988, unauthorized absences from a counselling to an official reprimand, and when he denied Shaub use of vacation leave for those days.
2. The State of New Jersey did not violate subsection 5.4(a)(1), independently, when certain statements were made by Young and Medical Director William Thompson.
RECOMMENDED ORDER
I recommend that the Commission ORDER the State of New Jersey to:
I. Cease and desist from:
A. Interfering with, restraining or coercing its employees in the exercise of the rights guaranteed them by the Act by increasing the discipline of employees such as Robert Shaub in retaliation for protected activities, including participation in Commission proceedings.
B. Discriminating in regard to terms and conditions of employment to discourage employees in the exercise of the rights guaranteed them by the Act, in particular by increasing the discipline of employees such as Robert Shaub in retaliation for protected activities, including participation in Commission proceedings.
C. Discriminating against employees such as Robert Shaub because they signed and filed an affidavit and gave information in Commission proceedings.
II. Take these actions:
A. Rescind the official reprimand of Robert Shaub and restore the penalty of counselling for Shaub's unauthorized absences on February 13 and 14, 1988.
B. 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.
C. Notify the Chairman of the Commission within twenty (20) days of receipt what steps the Respondent has taken to comply with this order.
I recommend that the Commission DISMISS the remaining allegations in the complaint.
Susan A. Weinberg
Hearing Examiner
Dated: May 30, 1990
Trenton, New Jersey
TABLE OF OFFENSES AND PENALTIES
1st Infraction 2nd Infraction 3nd Infraction 4th Infraction 5th Infraction
Types of Offenses Min.--Max. Min.--Max. Min.--Max. Min.--Max. Min.--Max.
A ATTENDANCE
1. Absent from work WW OR OR R R
as scheduled without
permission and with-
out giving proper
notice of intended
absence.
2. Absent from work C WW WW OR OR R R
as scheduled without
permission but with
giving proper notice
of intended absence.
E GENERAL
1. Violation of a C R 5d R R
rule, regulation,
policy, procedure,
order or administra-
tive decision.
KEY: C = Counselling OR = Official Reprimand
OW = Oral Warning d = Number of Working Days Suspension
WW = Written Warning D = Demotion
R = Removal
(R-18).
WE WILL cease and desist from interfering with, restraining or coercing our employees in the exercise of the rights guaranteed them by the Act by increasing the discipline of employees such as Robert Shaub in retaliation for protected activities, including participation in Commission proceedings.
WE WILL cease and desist from discriminating in regard to terms and conditions of employment to discourage our employees in the exercise of the rights guaranteed them by the Act, in particular by increasing the discipline of employees such as Robert Shaub in retaliation for protected activities, including participation in Commission proceedings.
WE WILL cease and desist from discriminating against our employees such as Robert Shaub because they signed and filed an affidavit and gave information in Commission proceedings.
WE WILL rescind the official reprimand of Robert Shaub and restore the penalty of counselling for his unauthorized absences on February 13 and 14, 1988. ***** End of HE 90-54 ***** |