H.E. No. 83-32

Synopsis:

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

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

In a companion decision, H.E. No. 83-30, the Hearing Examiner recommends that an unfair practice charge brought by the Prosecutor concerning these same actions be dismissed. Since the actions of Lazo were protected by the Act, and although the actions of Michael Hughes standing by themselves were unprotected, they did not interfere with the selection of an employer representative in negotiations, concern a refusal to negotiate or violate any of the rules and regulations of the Commission as alleged.

A Hearing Examiner's Recommended Report and Decision is not a final administrative determination of the Public Employment Relations Commission. The case is transferred to the Commission which reviews the Recommended Report and Decision, any exceptions thereto filed by the parties, and the record, and issues a decision which may adopt, reject or modify the Hearing Examiner's findings of fact and/or conclusions of law.

PERC Citation:

H.E. No. 83-32, 9 NJPER 239 (¶14111 1983)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

73.5

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 83-032.pdf
Appellate Division:
Supreme Court:

H.E. NO. 83-32 1. H.E. NO. 83-32 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of PBA LOCAL 250, UNION COUNTY PROSECUTOR = S OFFICE, Respondent, -and- Docket No. CE-82-17 COUNTY OF UNION, Charging Party. Appearances: For the Respondent Schneider, Cohen, Solomon & DiMarzio, Esqs. (David Solomon, Esq.) For the Charging Party Weinberg & Manoff, P.A. (Richard J. Kaplow, Esq.) HEARING EXAMINER = S RECOMMENDED REPORT AND DECISION On March 19, 1982, the County of Union on behalf of the Union County Prosecutor = s Office filed an Unfair Practice Charge with the Public Employment Relations Commission ( A Commission @ ) alleging that PBA Local 250 ( A Respondent @ ) violated N.J.S.A. 34:13A-5.1 et seq. when Detective Michael Hughes, a State Delegate of the Respondent A directed intentional disparaging and threatening remarks concerning the then County Manager, George Albanese, to two County administrators @ for the express purpose of interfering with and coercing the County of Union in its collective negotiations with PBA Local 250. It was further alleged that Detective Richard Lazo, President of the respondent PBA Local 250, attempted without authorization to utilize county personnel at facilities to obtain information concerning the private activities of the Prosecutor. It was claimed that Lazo was attempting to use this information for litigation concerning a grievance over the use of county vehicles. It was claimed this action was taken for the express purpose of interfering with and coercing the County of Union. It was specifically alleged that this activity constituted violations of ' 5.4(b)(2), (3) and (5) of the Act.1/ It appearing that the allegations of the charge concerned the identical facts as an unfair practice charge brought by the Respondent, CO-82-153-70, these matters were by mutual request of the parties consolidated for hearing. Hearings on the instant matter, as well as Docket No. CO-82- 153-70, were conducted on August 9 and 10, 1982, at which time both parties were given an opportunity to examine and cross- examine witnesses, submit evidence and argue orally. Both sides submitted briefs which were received by October 25, 1982. In the companion decision, H.E. No. 83-30, findings were established and are hereby incorporated into the instant decision. The undersigned makes the additional findings in this matter. 1. Richard Lazo knew the Mello family and had visited their home on social visits. Lazo knew Laurie Mello from those occasions as well as contact at work (see para. 6 in H.E. No. 83- 30). 2. When Hughes told Perselay that Cirigliano that he was publishing pictures in the Star Ledger, he said that they were of County Manager George Albanese playing tennis during county business hours. (See H.E. No. 83-30, paras. 14 and 15) 3. Hughes also told Perselay and Cirigliano in the conversations in H.E. No. 83-30, paras. 13, 14 and 15, that Hughes understood that Albanese was leaving the county. 4. Hughes make these statements A to needle @ Albanese because Hughes believed Albanese was responsible for the detectives losing the use of county vehicles on their own time and for their loss of meal money. Analysis As found in H.E. No. 83-30 the conduct of Richard Lazo was protected activity within the meaning of the Act. He approached Laurie Mello only at the suggestion of her father and he made it clear to her that the information he sought was not pursuant to his duties as a detective but rather in his capacity as a union president. The Charging Party did not demonstrate that personal conversations or union business could not be conducted during business hours. There is nothing to support the charge that Lazo = s conduct violated the Act. Michael Hughes = conduct, which was a crude attempt to get back at Albanese, was outside the protections of the Act and, as was found in H.E. No. 83-30, subject to employer discipline. (It was only because of the particular circumstances in the instant matter that Hughes = discipline constituted an unfair practice.) It does not follow however that because conduct is outside the protections of ' (a)(1), such conduct must be violative of ' (b)(2), (3) or (5). Subsection 5.4(b)(2) protects an employer from interference with the selection of a representative in negotiations in grievance processing; ' (b)(3) concerns the refusal to negotiate with the public employer, and ' (b)(5) relates to violating any of the rules and regulations of the Commission. Hughes = conduct does not violate any of these specific subsections. Even if one does not accept Hughes = expressed rationale for his conduct2/ and Hughes = conduct is seen as an effort to interfere with or coerce the negotiations between the parties, such conduct does not go to the selection of an employer = s negotiations representative, constitute a refusal to negotiate or violate a rule or regulation of the Commission. Accordingly, it is hereby recommended that the instant charge, CE-83-17, be dismissed in its entirety. /s/Edmund G. Gerber Hearing Examiner DATED: March 22, 1983 Trenton, New Jersey 1/ These subsections prohibit employee organizations, their representatives or agents from: A (2) Interfering with, restraining or coercing a public employer in the selection of his representative for the purpose of negotiations or the adjustment of grievances; (3) Refusing to negotiate in good faith with a public employer, if they are the majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit; (5) Violating any of the rules and regulations established by the commission. @ 2/ Which, absent evidence to the contrary, the undersigned has accepted (see para. 4). ***** End of HE 83-32 *****