H.E. NO. 78-23

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

CITY OF HACKENSACK,

Respondent,

-and-	Docket No. CO-77-320-20

HACKENSACK FIRE FIGHTERS LOCAL

2081, IAFF, AFL-CIO,

Charging Party.

_________________________________

HACKENSACK FIRE FIGHTERS LOCAL

2081, IAFF, AFL-CIO,

Respondent,

-and-	Docket No. CE-78-10-37

CITY OF HACKENSACK,

Charging Party.

Appearances:

For the City of Hackensack, Murray, Meagher & Granello, Esq. (Mr. James P. Granello, of Counsel)

For the Hackensack Fire Fighters Local 2081, IAFF, AFL-
CIO (Mr. Thomas P. Flynn, Vice President, IAFF)

HEARING EXAMINER'S REPORT

AND RECOMMENDED DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on May 9, 1977 by Hackensack Fire Fighters Local 2081, IAFF, AFL-CIO (hereinafter the "Union"), which was amended August 19, 1977, alleging that the City of Hackensack (hereinafter the "City") 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 City, in response to a letter from the Union President to the Mayor with respect to the condition of certain fire patrol cars, sent a letter back to the Union President threatening him with discipline if he ever again submits a letter to anyone but the City's Chief of the Fire Department, all of which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1), (2), (3) and (5) of the Act.1/

The City, by way of response to the charge of the Union, filed an unfair practice charge on September 19, 1977, alleging that the Union had refused to negotiate in good faith with the City by the Union President's aforesaid letter to the Mayor, which allegedly bypassed the authorized City negotiators during a period of negotiations for a successor agreement, all of which is alleged to violate N.J.S.A. 34:13A-5.4(b)(2), (3) and (5) of the Act.2/

It appearing that the allegations of the above charges, if true, may constitute unfair practices within the meaning of the Act, Complaints and Notices of Hearing were issued, respectively, on September 13, 1977 and October 21, 1977.

Pursuant to the Complaints and Notices of Hearing, hearings were held on October 11 and November 14, 1977 in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. A post-hearing brief was submitted by the City only on December 16, 1977.

Unfair practice charges, as amended in the case of the union, 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 brief filed by the City, 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 City of Hackensack is a public employer within the meaning of the Act, as amended, and is subject to its provisions.

2.	The Hackensack Fire Fighters Local 2081, AIFF, AFL-CIO, is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

3.	The Union has for many years been the sole and exclusive collective negotiations representative for all firemen employed by the City. The most recent collective negotiations agreement was effective during the term January 1, 1974 to December 31, 1976, with provision that the agreement remains in full force and effect until superceded by a successor agreement. Negotiations for a successor agreement commenced November 3, 1976 and, as of the date of hearing in the instant matter, no successor agreement has been consummated.

4.	The City is represented in collective negotiations, inter alia, by its special labor counsel, Murray, Meagher and Granello, and by an administrative analyst, Gordon Sieck, who reports directly to the City Manager. The City Manager does not attend negotiations sessions nor does the Mayor or members of City Council. Instructions to negotiators for the City originate with the City Manager. It is noted that the City Manager, Joseph J. Squillace, was one of the parties who executed the collective negotiations agreement effective January 1, 1974 (R-2).

5.	The Union negotiators submitted proposals for a successor agreement at the first negotiations meeting on November 3, 1976. Unlike the provisions of Article XXVI, Section 26.2A of the current agreement, the Union's contract proposals in Article 26 omitted reference to assignment of firemen to "public safety fire and safety patrol." Further, in subsequent negotiations meetings, at least through the third meeting on March 22, 1977, the Union did not raise or discuss the fire safety patrol.

6.	Gordon Sieck testified that at a February 1977 meeting of the City Council a private citizen raised a question about the condition of the fire safety patrol cars. This question was addressed to the Mayor, to which the City Manager responded, at the direction of the Mayor, that the matter was not a proper subject for public discussion in view of current contract negotiations (Tr.116).

7.	The then Mayor, Kazmier Wysocki, testified that at a City Council meeting a private citizen brought up the question of the condition of fire safety patrol vehicles, and he further testified that after the public meeting Nicholas Sarapuchiello, the Union President, spoke to him about the fire safety patrol vehicles. The Mayor told Sarapuchiello to "put it in writing" (Tr. 32-34).

8.	Mr. Sarapuchiello, under date of February 19, 1977, addressed a letter to then Mayor Wysocki on the letterhead of the Union, which stated, in pertinent part, as follows:

The Local finds it most important to demand safer automobiles if Fire Patrol is to be continued.

...We DO respond to emergencies, in these unsafe vehicles. The very fact that the vehicles in question have lasted so long, is a testimony to the perseverance of the Firefighters who, with little regard to their own personal safety, have endured enumerous (sic) mechanical and safety deficiencies, in pursuing their public purpose.

The safety of the Firefighters should be of paramount importance to management. We insist on it.

For the Local

Nick Sarapuchiello, Pres.

9.	The then Mayor Wysocki received Mr. Sarapuchiello's letter of February 19, 1977 and brought it to the next meeting of the City Council where it was the consensus of the City Council to turn the letter over to the City Attorney for response (Tr. 23, 24, 116, 177).

10.	Under date of April 26, 1977, the City Attorney, Seymour Chase, responded by letter as follows:

This office has reviewed a letter dated February 19, 1977 which you sent to Mayor Kazmier Wysocki concerning the safety of Fire Patrol Automobiles.

This letter was a clear violation of the rules and regulations of the Fire Department. Specifically, Article III, Section 63, provides that official business which members of the Department wish to conduct with the City Manager must pass through the office of the Fire Chief. Fire Fighters are not authorized to conduct official business directly with the Mayor.

Further, violations of this rule will give rise to disciplinary action.

Very truly yours,

SEYMOUR CHASE

City Attorney

(Emphasis supplied).

The City stipulated that Mr. Chase was authorized to write the above letter on behalf of the City.

11.	Fire Chief Charles H. Jones testified that the April 26, 1977 letter from Mr. Chase to Mr. Sarapuchiello is either in Mr. Sarapuchiello's personnel file or is on its way to his personnel file (Tr. 162).

THE ISSUE

1.	Did the City Attorney's letter of April 26, 1977 to Nicholas Sarapuchiello, and its placement in Mr. Sarapuchiello's personnel file, constitute a violation of the Act?

2.	Did Nicholas Sarapuchiello's letter of February 19, 1977, addressed to the Mayor, constitute an attempt by the Union to bypass authorized City negotiators during the pendency of negotiations for a successor agreement in violation of the Act?

DISCUSSION AND ANALYSIS

The City Violated the Act When

It Threatened Sarapuchiello

With Discipline in the Future

if He Again Communicated Directly

With the Mayor

The Hearing Examiner is of the opinion, and concludes, that the City violated Subsections (a)(1) and (3) of the Act when the City Attorney, by letter dated April 26, 1977, threatened Nicholas Sarapuchiello, the President of the Union, with discipline if he again communicated official business directly with the Mayor.

The first thing to be noted is that Article III, Section 63 of the Rules and Regulations of the Fire Department, by which Mr. Sarapuchiello as a firefighter is governed, and which was cited by the City Attorney, pertains to the conduct of official business with the City Manager. It makes no reference to the Mayor or any other City official.

It is clear to the Hearing Examiner that communication with a public official, such as the Mayor in the instant case, particularly where the communication originated at the request of the Mayor, is a protected activity within the meaning of the Act where the communication pertains to terms and conditions of employment. The Hearing Examiner notes that Mr. Sarapuchiello's letter of February 19, 1977 addressed to the Mayor was on the letterhead of the Union and signed by Mr. Sarapuchiello in his capacity as President of the Union. The thrust of the letter was to protest the condition of fire safety patrol vehicles, clearly a term and condition of employment for the fire fighters covered by the collective negotiations agreement.

It is interesting to note that the matter of communication with the Mayor by Mr. Sarapuchiello originated with a question raised by a private citizen about the condition of the fire safety patrol vehicles. The Hearing Examiner concludes that Mr. Sarapuchiello had a clear right to communicate with the Mayor with respect to the condition of the fire safety patrol vehicles, either in his capacity as an employee of the City, or in his capacity as President of the Union or, for that matter, in his capacity as a private citizen and taxpayer of the City.3/

Support for the right of an officer of a public employer representative to communicate with a representative of the public employer with respect to terms and conditions of employment has been recognized and affirmed by the Commission in the case of Laurel Springs Board of Education, P.E.R.C. No. 78-4, 3 NJPER 228 (1977). It is clearly applicable in the instant case where communication was made by the President of the Union to the Mayor if the City. Thus, Laurel Springs is precedent for finding that Mr. Sarapuchiello was engaged in protected activity when he wrote to the Mayor on February 19, 1977 with respect to the condition of the fire safety patrol vehicles.

Having found that Mr. Sarapuchiello was engaging in protected activity within the meaning of the Act, the Hearing Examiner now turns to the question of the threat of discipline for future communication with the Mayor as a violation of Subsections (a)(1) and (3) of the Act. It is well settled that such a violation must be based upon discriminatory employer conduct which is motivated in whole or in part by a desire to encourage or discourage an employee in the exercise of rights guaranteed by the Act, or had the effect or so encouraging or discouraging the exercise of said rights.4/

The Commission in City of Hackensack, P.E.R.C. No. 78-30, 3 NJPER ___ (1977) affirmed the findings and conclusions of the Hearing Examiner in that case, who had found that the threat of discipline for future infractions constituted a violation of Subsections (a)(1) and (3) of the Act. The Hearing Examiner had predicated his (a)(1) finding, in part, on the case of Crown Central Petroleum Corp. v. NLRB, 430 F.2d 724, 74 LRRM 2855 (7th Cir. 1965). There the court held that disciplinary action taken by an employer against employees for alleged insubordinate statements directed at supervisors was unlawful. The court stated that although management does have the right to discipline employees, "...that right is not immune from challenge as a primary violation of Section 8(a)(1). When then considered, the motive behind an employer's conduct is not an element of the unfair labor practice charge." Thus, even if the employer acted in good faith, its action is violative of Section 8(a)(1) if the employer's conduct tends to interfere with the protected rights of employees.

The Hearing Examiner in the instant case also relies in his conclusion that there was a violation of the Act upon the following decisions of the NLRB and the courts in like cases: Isaac & Vinson Security Services, Inc., 193 NLRB No. 129, 78 LRRM 1525 (1971); Hayes-Albion Corp. et al., 195 NLRB No. 170, 79 LRRM 1557 (1972); Bob Henry Dodge, Inc., 203 NLRB No. 1, 83 LRRM 1077 (1973); Prince Lithograph Co., Inc., 205 NLRB No. 23, 83
LRRM 1654 (1973); NLRB v. Lenkurt Electric Co., 459 F.2d 635, 80 LRRM 2222 (9th Cir. 1972).

Any question about the disciplinary nature of the City Attorney's letter of April 26, 1977 to Mr. Sarapuchiello is eliminated by the fact that the Fire Chief testified that the said letter is either in Mr. Sarapuchiello's personnel file or on its way to it. By way of remedy, the Hearing Examiner will recommend to the Commission that it order the City to remove the City Attorney's letter from Mr. Sarapuchiello's file.

The City has not Proved by a Preponderance

of the Evidence that Mr. Sarapuchiello's

Letter of February 19, 1977 Constituted an

Attempt by the Union to By-pass Authorized

City Negotiators During the Pendency of

Negotiations for a Successor Agreement

The Hearing Examiner will recommend dismissal of the City's charges of unfair practices against the Union for allegedly by-
passing authorized City negotiators during the pendency of negotiations for a successor agreement. The City, clearly, has not proved its case by a preponderance of the evidence as required by N.J.A.C. 19:14-6.8.

The Hearing Examiner first notes that the City Attorney's letter of April 26, 1977 to Mr. Sarapuchiello threatening discipline made no reference whatsoever to any unfair practice in Mr. Sarapuchiello's having communicated directly to the Mayor concerning the condition of fire safety patrol vehicles. Thus, the Hearing Examiner is of the opinion that the City's filing of charges of unfair practices is an afterthought and a tactic designed to meet the charges by the Union of unfair practices by the City.

It is true, and the Hearing Examiner has so found, that the parties were in negotiations for a successor agreement on February 19, 1977, the date when Mr. Sarapuchiello communicated by letter with the Mayor. It is also true that the Union in its counter-proposals for a successor agreement sought to eliminate reference to the fire safety patrol. Finally, it is true that the Mayor is not part of the negotiating team for the City and that the City is represented in labor negotiations by its special labor counsel and by an administrative analyst.

However, the foresaid findings by the Hearing Examiner do not in any way constitute an inconsistency with the Hearing Examiner's conclusion that the City has not proved a violation of the Act by the Union in instant case. The Hearing Examiner is of the opinion that Mr. Sarapuchiello on February 19, 1977, although President of the Union and a member of the Union's negotiating team, wrote to the Mayor with respect to a term and condition of employment which, irrespective to the Union's position in negotiations was not an attempt to by-pass City negotiators. Rather, it was an attempt by Mr. Sarapuchiello to reduce to writing the subject matter of a conversation which he had with the Mayor following a public City Council meeting where a private citizen raised a question regarding the condition of fire safety patrol vehicles.

In summary, the Hearing Examiner concludes that the engaging by Mr. Sarapuchiello in a protected activity on February 19, 1977 did not constitute an attempt by him to by-pass authorized City negotiators during the pendency of negotiations for a successor agreement, but was instead the engaging by him in an activity protected by the Act. The Hearing Examiner is of the view that one cannot violate the Act as to the City under Section 5.4(b) while engaging in an activity protected by Section 5.4(a) of the Act.

* * * *

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

CONCLUSIONS OF LAW

1.	The letter of February 19, 1977 from Mr. Nicholas Sarapuchiello as Union President to the then Mayor Wysocki with respect to a term and condition of employment was an activity protected by the Act and the threatened discipline by the City Attorney in a letter dated April 26, 1977 was a violation of Subsections (a)(1) and (3) of the Act.

2.	Nicholas Sarapuchiello's letter of February 19, 1977 did not constitute an attempt by the Union to by-pass authorized City negotiators during negotiations for a successor agreement and was, therefore, not a violation of Subsections (b)(2), (3) and (5) of the Act.

3.	The city has violated the provisions of N.J.S.A. 34:13A-5.4(a)(1) and (3) of the Act. However, the City has not violated N.J.S.A. 34:13a-5.4(a)(2) and (5) of the Act.

4.	The Union has not violated the provisions of N.J.S.A. 34:13A-5.4(b)(2), (3) and (5) of the Act.

RECOMMENDED ORDER

The Hearing Examiner recommends that the Commission issue an ORDER that the City of Hackensack:

A.	Cease and desist from:

1.	Interfering with, restraining or coercing its employees in the exercise of the rights guaranteed to them by the Act by refraining from threatening discipline to employees, including Nicholas Sarapuchiello, for engaging in protected activities.

2.	Discriminating in regard to hire a tenure of employment or any term and condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by the Act.

B.	Take the following affirmative action:

1.	Remove from Nicholas Sarapuchiello's personnel file the City Attorney's letter of April 26, 1977, which threatened Sarapuchiello with discipline if he again communicated with the Mayor.

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

3.	Notify the Director of Unfair Practices within twenty (20) days of receipt of this order what steps the City has taken to comply herewith.

C.	It is further recommended that the Commission order those portions of the Complaint which charge the City with violations of Section 5.4(a)(2) and (5) of the Act be dismissed.

D.	It is further recommended that the Commission order the Complaint alleging violations of Section 5.4(b)(2), (3) and (5) of the Act by the Union be dismissed in its entirety.

____________________________

Alan R. Howe

Hearing Examiner

DATED:	February 2, 1978

Trenton, New Jersey