H.E. NO. 85-19

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

STATE OF NEW JERSEY,

DEPARTMENT OF EDUCATION,

Respondent,

-and-	Docket No. CO-82-248-21

COMMUNICATIONS WORKERS OF

AMERICA,

Charging Party.

__________________________________

STATE OF NEW JERSEY,

DEPARTMENT OF EDUCATION,

Respondent,

-and-	Docket No. CO-83-30-22

COMMUNICATIONS WORKERS OF

AMERICA,

Charging Party.

Appearances:

For the Respondent

Hon. Irwin I. Kimmelman, Attorney General

(Michael L. Diller, D.A.G.)

For the Charging Party

Ann F. Hoffman, Counsel, C.W.A.

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

On March 19, 1982, and as amended June 14, 1982, the Communications Workers of America ("Charging Party" or "CWA") filed an unfair practice charge with the Public Employment Relations Commission ("Commission") alleging that the State of New Jersey, Department of Education ("State") had engaged in unfair practices within the meaning of the New Jersey Employer-
Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ("Act"), specifically subsections 5.4(a)(1), (3), (4), (5) and (7)1/ when it terminated one employee and harassed another due to their activities as shop stewards at the New Jersey Job Corps Center which was operated by the State Department of Education.

On August 11, 1982, and as amended on August 12, 1982, CWA filed a charge with the Commission alleging that the State had engaged in unfair practices within the meaning of the Act and specifically subsections 5.4(a)(1), (3), (4) and (7) when in August, 1982, the Job Corps Center Director publicly ridiculed one of the shop stewards.2/

It appearing that these allegations, if true, might constitute unfair practices within the meaning of the Act, an Order Consolidating Cases and a Complaint and Notice of Hearing were issued on August 27, 1982. The State filed an Answer on September 13, 1982, in which it denied the charges.

Hearings were held before Hearing Examiner Joan Kane Josephson on November 22 and 23, 1982, January 20, March 18 and 28, 1983, at which time all parties were given opportunities to present evidence, examine and cross-examine witnesses and argue orally. Hearing Examiner Josephson subsequently left the employ of the Commission and the Commission designated the undersigned to issue a report and recommendations on the record as made, pursuant to N.J.A.C. 19:14-6.4. For good cause shown, and noting the Charging Party's consent, the undersigned granted the Respondent's request for an extension for the filing of briefs. Both parties have filed briefs and responsive letter briefs, the last of which was received on September 6, 1984.

Based upon the entire record, the undersigned makes the following:

Findings of Fact

1.	The State of New Jersey, Department of Education is a public employer within the meaning of the Act and is subject to its provisions.

2.	The CWA is a public employee representative within the meaning of the Act and is subject to its provisions.

3.	Gregory DiGiacomo was an automobile body repair instructor at the State Job Corps Center from 1974 until his discharge in October, 1981. DiGiacomo testified that between October 1980 and October 1981, he was a union shop steward, first for CWA's predecessor majority representative, the State Employees Association ("SEA") and then for CWA (TI at pp. 14 and 77).3/ The State contended and proved that DiGiacomo was not a contractually designated shop steward for either SEA or CWA (TIII at pp. 22-23). However, DiGiacomo did participate in various union activities, including meetings, grievance processing, leafletting and picketing (TI at pp. 26, 83-6, 95, 130 and 147). Herman Kimbrough, then Director of the Center, was aware of DiGiacomo's union activities and once criticized DiGiacomo about "damn grievances" that had been filed (TI at pp. 16-20, 30 and 118-119).

4.	DiGiacomo was late for work on numerous occasions.4/ DiGiacomo testified that he was late three days per week on the average (TI at p. 48). On January 30, 1981 and March 25, 1981 DiGiacomo received evaluations which were critical of his tardiness (Exhibits CP-7 and 8 respectively). Gregory Motus, DiGiacomo's supervisor. testified that DiGiacomo's chronic tardiness was compounded by his frequent failure to give prior notice, or prepare complete lesson plans for substitutes to deliver. As a result of DiGiacomo's tardiness and omissions, students either wandered through the Jobs Corps compound or were supervised by teachers who could not teach without complete lesson plans. Motus discussed these problems with DiGiacomo; following a period of improvement, DiGiacomo returned to a pattern of tardiness and omissions (TII at pp. 62-71).

6.	In April, 1981 the State decided to terminate DiGiacomo (TIII at pp. 84-86; R-34 and 35). However, in June 1981, DiGiacomo went on disability leave and did not return to work until October 1981, where after he was informed of his termination (CP-14, TI at pp. 39-42).

6.	Hetty Rosenstein was an instructor in the basic education department at the Job Corps from May 1980 to October 1982. There was contradictory evidence as to whether Rosenstein was a shop steward for SEA or CWA. Rosenstein testified that she was elected as an SEA shop steward in October 1980 and a CWA shop steward in May 1981 (TII at p. 4). CWA introduced a State of New Jersey Grievance Procedure Form (CP-2) dated March 10, 1981, which lists Rosenstein as an SEA shop steward. The State introduced evidence that Rosenstein was not an officially designated shop steward for CWA until March 19, 1982, when she was designated as a CWA shop steward pursuant to contractual procedures.5/

Whether or not Rosenstein was officially designated from the State's perspective, it is clear that Rosenstein, her fellow workers and the Center's management either felt she was, or treated her as a shop steward (see, e.g. TIII at pp. 108-109; TIII at p. 51; TV at p. 56). In her capacity as a defacto shop steward, as well as after official designation pursuant to contract, Rosenstein participated in various union activities including grievance processing and hearings, leafletting and picketing.

7.	Rosenstein testified that during her tenure as shop steward several management employees evidenced anti-union behavior. Rosenstein testified that Terri Grey, Assistant Director of the Center and first step grievance representative for management, once responded to Rosenstein's inquiry about several grievances as follows: "I'll hear the grievances when I am good and ready." (TII at p. 7). Rosenstein later testified that in April, 1981, Grey refused to sign Rosenstein's evaluation form. Rosenstein testified that when she asked Grey for her reason for not signing the form, Grey replied:

You're always asking me questions and you're always causing me problems....Well, I don't think you should be involved with any other teachers....Just be involved with yourself. (TII at p. 14).

Rosenstein also testified that in August, 1982, Gregory Motus approached her and asked, "What are you planning now? What kind of trouble are you bringing?" (TII at p. 43). Motus confirmed that he made such comments, but contended that they were made in a "joking manner" (TIII at p. 108).

8.	On February 11, 1982, Ralph Knotts, who had just become the Center's new director, introduced himself to Rosenstein, whom he was meeting for the first time, as "Ralph Rosenfeld" or "Ralph Rosenstein" (TI at p. 162; TII at pp. 70-72; TIV at p. 18). Knotts testified that he was hired on February 1982 to "straighten the program out," and that his first priority was to meet with key personnel, including Rosenstein, to discuss problems at the Center. The discussions resulted in various policy initiatives (TIV at pp. 11-34).

9.	On April 16, 1982, a Center guard required Richard Rogers, president of CWA Local No. 137, to produce identification before permitting him to enter the Center's property. Rogers had earlier in the day received Knott's permission to enter the center's property. A Center regulation required that all visitors produce identification before being permitted entry.6/ This regulation was promulgated by Director Knotts in response to security problems which he had identified, and was published in several bulletins to employees prior to the Rogers incident (TIV at pp. 70-80; R-50, 51, 52, 53 and 56A-F).

10.	Rosenstein played an active role in the April 16, 1982 picketing. During the picketing Rosenstein got into a discussion with Alphonso Scott, administrative assistant to Knotts, the main gate security guard and others concerning the requirement that Rogers produce identification. Rosenstein and Scott met later that day after a meeting with students; Rosenstein testified that Scott stated: "You're up to something....You have a hidden agenda" (TII at p. 27). On April 16, 1982, Scott sent Knotts a memorandum concerning the security gate event which was critical of Rosenstein's actions (R-58). On April 20, 1982, Scott sent Knotts a memorandum concerning his contact with Rosenstein after the meeting with students (R-62).

11.	On April 20, 1982, Rosenstein received a written (CP-
16) reprimand from Knotts criticizing her for her activities on April 16, 1982.7/ The reprimand was to be placed in her personnel file. On May 10, 1982, Rosenstein filed a grievance over the reprimand. Following a May 21, 1982 grievance hearing, Knotts on May 24, 1982, ordered that the reprimand be removed from her file (TIV at p. 93). Rosenstein subsequently discovered that a different reprimand had been placed in her file.8/ This latter reprimand was a rough draft of the reprimand actually sent to Rosenstein and was not intended to be circulated to anyone nor to be placed in her file. At Rosenstein's request, the draft was removed from her file (TII at pp. 112-113).

ANALYSIS

I.	Did the State violate N.J.S.A. 34:13A-5.4(a)(3) and, derivatively,9/ N.J.S.A. 34:13A-5.4(a)(1) when it discharged Gregory DiGiacomo?

For the Charging Party to prevail on an (a)(3) charge, it must prove by a preponderance of the evidence that it has met the "causation test" enunciated by the New Jersey Supreme Court in Bridgewater Twp. v. Bridgewater Public Works Assn., 95 N.J. 235 (1984), which adopted the analysis of the National Labor Relations Board in Wright Line, Inc., 251 NLRB 1083, 105 LRRM 1169 (1980), enforced 622 F.2d 899, 108 LRRM 2513 (CA1 1981), cert. denied 455 U.S. 989, 109 LRRM 2779 (1982).10/ The "test" involves the following requisites in assessing employer motivation: (1) the Charging Party must make a prima facie showing sufficient to support an inference that protected activity was a "substantial" or a "motivating" factor in the Respondent's adverse employment decision and; (2) once this is established, the burden shifts to the Respondent to demonstrate that the same action would have taken place even in the absence of protected activity. Mt. Healthy City School District Board of Education v. Doyle, 492 U.S. 274 (1977).

With respect to the first aspect of the (a)(3) test, the Charging Party proved that, while DiGiacomo was not a contractually designated shop steward, he engaged in extensive protected activity, with management's knowledge, in the year preceding his discharge. In support of an inference that this protected activity was a "substantial" or "motivating" factor in his discharge, DiGiacomo testified that Herman Kimbrough, Center Director and signatory of DiGiacomo's termination notice (CP-14), admonished DiGiacomo for the filing of "damn grievances." (See Finding of Fact No. 3) Kimbrough did not testify nor did the State otherwise rebut DiGiacomo's testimony. Accordingly, in view of DiGiacomo's unrebutted testimony and his extensive protected activity, as well as the timing of all of the above, the undersigned concludes that the Charging Party has established a prima facie showing sufficient to support an inference that DiGiacomo's protected activity was a "substantial" or "motivating" fact in his discharge.

As noted above, the burden in an (a)(3) case shifts from the Charging Party who makes a prima facie showing, supporting an inference of improper employer conduct, to the Respondent, which has the burden of proving that the adverse employment action would have occurred even in the absence of the protected activity. The record reveals that the Respondent has clearly met this burden. Through documents and testimony, the State demonstrated that DiGiacomo was a chronically tardy employee who failed to give notice of such tardiness or to prepare complete lesson plans for substitute teachers in anticipation of his tardiness. He was warned repeatedly, oral and in writing, yet his work habits did not ultimately change (See Finding of Fact No. 4).

While the Charging Party argues that DiGiacomo has been late throughout his eight year career with the Job Corps, and that the State's sudden preoccupation with timeliness was pretextual, this argument does not comport with the evidence. The record clearly reveals that the Job Corps Center installed a time clock for the first time in July, 1980, and thereafter management began to vigorously enforce timeliness requirements (TIII at pp. 121-126). Similarly, the undersigned concludes that the Charging Party was not the victim of disparate treatment with respect to enforcement of timeliness requirements; of two individuals cited for comparison by the Charging Party, the Charging Party offered no evidence as to the tardiness of one, and evidence as to the other was effectively rebutted by the State (TIII at pp. 80-81 and 119).

Accordingly, the undersigned recommends that the Charging Party's allegations that the State violated N.J.S.A. 34:13A-
5.4(a)(3) and, derivatively, (a)(1), should be dismissed.

II.	Did the State violate N.J.S.A. 34:13A-5.4(a)(1) through its conduct with respect to Hetty Rosenstein?11/

An independent violation of subsection (a)(1) of the Act occurs when an employer engages in activities which, regardless of the direct proof of anti-union animus, tend to interfere with, restrain or coerce an employee or employees in the exercise of rights guaranteed to them by the Act, provided that the actions taken by the employer also lack a legitimate and substantial business justification. In re New Jersey Sports & Exposition Authority, P.E.R.C. No. 80-73, 5 NJPER 550 (¶10285 1979). "It is immaterial under subsection 5.4(a)(1) that [the actions do] not actually coerce an employee or [are] not illegally motivated; it is the tendency of the employer's conduct to interfere with employee rights, not its result or motivation, which is at issue." Ridgefield Park Board of Education, P.E.R.C. No. 84-120, 10 NJPER 266, 267 (¶15130 1980) (footnote omitted). See also, In re Commercial Township Board of Education, P.E.R.C. No. 83-25, 8 NJPER 550 (¶13253 1982), affirmed, App. Div. Docket No. A-1642-
82T2.

In reviewing independent (a)(1) claims, the Commission has indicated a delicate balance between employer and employee rights:

A public employer is within its rights to comment upon those activities or attitudes of an employee representative which it believes are inconsistent with good labor relations, which includes the effective delivery of governmental services, just as the employee representative has the right to criticize those actions of the employer which it believes are inconsistent with that goal. However..., the employer must be careful to differentiate between the employee's status as the employee representative and the individual's coincidental status as an employee of that employer....

When an employee is engaged in protected activity the employee and the employer are equals advocating respective positions, one is not the subordinate of the other. If either acts in an inappropriate manner or advocates positions which the other finds irresponsible criticism may be appropriate and even legal action...may be initiated to halt or remedy the others actions. However, where the employee's conduct as a representative is unrelated to his or her performance as an employee, the employer cannot express its dissatisfaction by exercising its power over the individual's employment. Black Horse Pike Reg. Bd/Ed, P.E.R.C. No. 82-19, 7 NJPER 502, 503 (¶12223 1981) (citations omitted).

Thus, in Black Horse Pike, the Commission found that the public employer violated subsection (a)(1) by placing two letters in the personnel file a union activist, because the letters criticized the individual for protected activity irrelevant to his teaching position.

In the instant matter, the Charging Party alleges that both oral and written comments by the State and its agents tended to interfere with Rosenstein's exercise of protected activity. Focusing first on the oral comments, the undersigned finds that the nature, timing and circumstances of the comments were not such as would tend to interfere with the exercise of protected activity by a union shop steward. The comments were made by management employees who either disagreed with Rosenstein's positions or conduct in several labor-management disputes (See comments by Grey, Finding of Fact No. 7) or sought to glean information regarding future union activity from Rosenstein (See Statements by Motus and Scott, Finding of Fact Nos. 7 and 10).12/ Significantly, none of the statements resulted in any written material concerning Rosenstein, nor were they uttered before groups of unit members, nor did they implicate or threaten Rosenstein's job status because of her conduct as an employee representative. Accordingly, the undersigned finds that the totality of this oral conduct, under the circumstances presented, did not tend to interfere with Rosenstein's exercise of protected activity. Compare Laurel Springs Board of Education, 3 NJPER 228 (1977).

Turning to the written reprimand from Knotts criticizing Rosenstein for her activities on April 16, 1982, the undersigned finds that the letter contained statements making impermissible connections between Rosenstein's employment status and her role as an employee representative. Black Horse Pike and Ridgefield Park, supra. The statements tended to interfere with, restrain or coerce Rosenstein in acting as an employee representative, and constitute a technical violation of subsection 5.4(a)(1).

Under all the circumstances of this case, however, the undersigned does not believe that the Commission should order affirmative relief to remedy the technical violation. The State did not take further action against Rosenstein; to the contrary, the State removed the reprimand from Rosenstein's file in voluntary settlement of her grievance. In similar circumstances, the Commission has previously found a technical violation, but deemed affirmative relief to be unnecessary and unwarranted. Ridgefield Park, supra; Middletown Township, P.E.R.C. No. 84-100, 10 NJPER 173 (¶153885 1984).13/

RECOMMENDED ORDER

The undersigned recommends that the Commission ORDER that:

1.	All aspects of the Complaints concerning Gregory DiGiacomo should be dismissed.

2.	A technical violation of N.J.S.A. 34:13A-5.4(a)(1) be found against the State for the reasons set forth above, but no affirmative relief should be ordered.

/s/Mark A. Rosenbaum

Hearing Examiner

DATED:	October 23, 1984

Trenton, New Jersey