H.E. NO. 97-22

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

ATLANTIC COUNTY

(DEPARTMENT OF CORRECTIONS),

Respondent,

-and-	Docket Nos. CO-H-96-412

CO-H-96-413

FRATERNAL ORDER OF POLICE LODGE NO. 34,

Charging Party.

Appearances:

For the Respondent, Paul J. Gallagher, County Counsel

(Kenneth M. Shumsky, Assistant County Counsel)

For the Charging Party, A.J. Fusco, attorney

(Richard S. Robinson, of counsel)

HEARING EXAMINER'S REPORT AND RECOMMENDED DECISION

ON MOTION FOR SUMMARY JUDGMENT

On May 6 and May 16, 1996, Fraternal Order of Police Lodge No. 34 filed unfair practice charges with the Public Employment Relations Commission1/ alleging that the Atlantic County violated subsections 5.4(a)(1), (2), (3), (4), (5) and (7) of the New Jersey

1/	Lodge 34 sought to have these charges treated as amendments to an earlier Complaint, Docket No. CO-H-96-189. As the Hearing Examiner in that matter, I declined to permit the amendments, and these charges were docketed separately.

Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq.2/ Lodge 34 alleges in its first charge (CO-H-96-412) that the County violated the FOP contract by denying Lodge 34 President Frank Kovach access to the County Justice Facility premises, beginning on March 20, 1996. Lodge 34 alleges that the denial of access to the premises prevented Kovach from carrying out his duties as Lodge 34 President.

In its second charge (CO-H-96-413), Lodge 34 alleges that during a negotiations session with Lodge 34's negotiators on May 9, 1996, the County served Kovach with a Notice of Termination and objected to his presidency of the Lodge and his participation in negotiations since he was fired and no longer a County employee. The FOP argues that these actions tended to intimidate and coerce employees in the exercise of their rights under the Act.

2/	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. (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. (5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative. (7) Violating any of the rules and regulations established by the commission."

On September 23, 1996, the Director of Unfair Practices issued a Complaint, Notice of Hearing, and Order consolidating the charges for hearing. On October 16, 1996, the County filed an Answer to the Complaint, stating,

The County admits the basic gravamen of the above-captioned charges, but not any legal interpretations or conclusions stated therein.

By letter of October 21, 1996, I advised the parties that, pursuant to N.J.A.C. 19:14-3.1, the factual allegations as contained in the charges were admitted to be true. On November 4, 1996, the FOP filed a Motion for Summary Judgment. On December 6, 1996, the County filed a response. The Commission Chair has referred the motion to me. N.J.A.C. 19:14-4.8(a).

Summary judgment will be granted:

...if it appears from the pleadings, together with the briefs, affidavits and other documents filed, that there exists no genuine issue of material fact and the movant...is entitled to its requested relief as a matter of law... [N.J.A.C. 19:14-4.8(d)].

Rulings on motions for summary judgment require that any inferences be drawn against the moving party and in favor of the party opposing the motion. No credibility determinations are made and the motion must be denied if material factual issues exist. N.J.A.C. 19:14-4.8(d). Whether a "genuine issue" exists to preclude summary judgment depends on whether "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the

alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Insurance Co. of America, 142 N.J.. 520, 540 (1995). A motion for summary judgment should be granted with extreme caution -- the procedure may not be used as a substitute for a plenary trial. Baer v. Sorbello, 17 N.J. Super.. App. Div. 1981); Essex Cty. Ed. Serv. Comm., P.E.R.C. No. 83-65, 9 NJPER 19 (¶14009 1982); N.J.. Dept. of Human Services, P.E.R.C. No. 89-52, 14 NJPER 695 (¶19297 1988).

Applying these standards, and relying upon the undenied facts as set forth in the charge in this matter, I make the following:

FINDINGS OF FACT

1. Lodge 34 represents the County's correction officers.

2. The County and Local 34 are parties to a collective negotiations agreement which provides at Article I, Section C:

The employee organization president or vice-president shall have access to the Gormley Justice Facility when off duty to conduct FOP 34 business.

3. On March 20, 1996, the County Deputy Warden distributed a memorandum to the Justice Facility's Central Control stating that, "effective immediately, Officer Frank Kovach is not permitted on the premises for any reason until further notice."

4. On May 9, 1996, the parties met at the County Library in Galloway, New Jersey for a negotiations session. The County negotiations committee included County Counsel Kenneth Shumsky and Warden Frank Mazzone. Lodge 34's negotiations committee consisted

of Attorney Mary Crangle, Lodge President Frank Kovach, and Correction Officers Edward Clopp, Anthony Jones, and Mitch Szczepanski. At the session, Warden Mazzone served Kovach with a Notice of Termination. Shumsky then objected to Kovach's continued presidency of the Lodge and his participation on the FOP negotiations committee since he was fired and no longer a County employee.

ANALYSIS

CO-H-96-412

Lodge 34 alleges that the County violated Article 21 of the parties' contract when, beginning on March 20, 1996, it denied Frank Kovach access to the County Justice Facility premises to prevent him from carrying out his duties as Lodge 34 President.

Lodge 34 argues in its brief that this action resulted in "numerous members" of Lodge 34 being denied a union representative of their choice at disciplinary hearings. In addition Lodge 34 argues that, because Kovach was barred from the union office, union business went unattended and grievances were not processed. Lodge 34 seeks an order restoring Kovach's full access to all County property to conduct Lodge 34 business. It also asks for counsel fees.

The County does not deny that it barred Kovach from County property. Rather, it argues in its response brief that Lodge 34's office is located within the "secured perimeter" of the jail, an area accessible only to employees and inmates. The County asserted

the following facts in its brief responding to the Motion: The entrance to the secured perimeter is controlled by a locking mechanism operated by the jail's central control. The Lodge 34 office is situated on the second floor, next to the Deputy Warden's office, which contains confidential inmate files and employee discipline files. The Lodge 34 office is also near an evidence storage area. The County's policy is not to permit non-employees inside the jail's secured area without an escort and/or prior authorization.

The County further asserts that a training trailer is located within the Gormley Complex, approximately 75 feet from the jail. The County proposes to make office space in the training trailer available for Lodge 34's use.

However, no affidavits accompanied the County's motion response. Therefore, the County's assertions as detailed above, cannot be considered as facts. They are merely argument.

An employer independently violates subsection 5.4(a)(1) if its action tends to interfere with an employee's statutory rights and lacks a legitimate and substantial business justification. Orange Bd. of Ed., P.E.R.C. No. 94-124, 20 NJPER 287 (¶25146 1994); Mine Hill Tp., P.E.R.C. No. 86-145, 12 NJPER 526 (¶17197 1986); New Jersey Sports and Exposition Auth., P.E.R.C. No. 80-73, 5 NJPER 550 (¶10285 1979); Gorman, Basic Text on Labor Law, at 132-34 (1976). The charging party need not prove an illegal motive. Orange; Hardin, The Developing Labor Law, at 75-78 (1992).

The County implemented a total ban on Kovach's access to the premises of the County Justice Facility. Absent a legitimate, substantial business justification for its actions, I find that the absolute prohibition of the union president from all access to County property tends to interfere with the rights of employees -- the right to have union representation at disciplinary and grievance hearings; and the right to have grievances properly investigated, filed, processed through the grievance procedure, and adjusted or arbitrated. An employer may not impose a total ban on access to its premises without a substantial, legitimate business reason. Bergen Cty., P.E.R.C. No. 84-2, 9 NJPER 451 (¶14196 1983). The County argues it had a legitimate business justification for barring Kovach from the "secured perimeter" of the jail. However, it presents no legitimate business reason for totally banning Kovach from County premises. Its absolute ban violated 5.4(a)(1) of the Act by denying Lodge 34 its right to access to its unit employees.

By way of remedy for the alleged violations,3/ Lodge 34 argues that Kovach should be given complete access to all County

3/	Lodge 34 submitted a series of memoranda with its charge, including a March 26, 1996, grievance from Kovach in which he alleges that the Deputy Warden barred him from attending the disciplinary hearing of a unit member, who was also on suspended status. Kovach asserts that he was ordered to leave County property because he was on suspended status, and that County Counsel told him to find another union representative to represent the suspended officer. I need not consider these factual assertions, since they were neither submitted as part of the charge nor as affidavits in support of the Summary Judgment Motion.

facilities and premises. However, giving every favorable inference to the County, there is a genuine issue of fact concerning the appropriateness of such a remedy. First, there is a question about Kovach's present status as an employee, as the County served him with a termination notice in May, 1996. Access for non-employees to the employer's property are determined by different standards than for employees. N.J. Dept. of Transportation, P.E.R.C. No. 90-114, 16 NJPER 387 (¶21158 1990), motion for recon. den. P.E.R.C. No. 91-28, 16 NJPER 535 (¶21237 1990). Second, the County asserts that certain areas of the jail itself are off-limits to non-employees for potentially valid security reasons.

However, to remedy the violation of the Act, it is not necessary to reach a definitive answer on what level of access is appropriate for Kovach under today's circumstances. Lodge 34 has not established that Kovach is entitled to access to the Lodge 34 office inside the jail's secured perimeter. The contract between Lodge 34 and the County does not guarantee Kovach access to the current Lodge 34 office. Rather, the contract guarantees the president or vice-president access. Second, the contract provides for access to an office in the Justice Complex facilities, not necessarily inside the restricted area of the jail itself. These issues are contract interpretation issues which are more appropriate for an arbitrator to examine. Should the County implement a new restriction on access for Kovach, the parties may dispute such a ban through in the contractual grievance process.

Accordingly, I find that the County violated 5.4(a)(1) of the Act when it interfered with employees' rights under the Act by implementing a total ban on access to the County Justice complex premises for Lodge President Frank Kovach.4/

CO-H-96-413

Lodge 34 argues that the County's actions at the May 1996 negotiations session coerced and intimidated the members of Lodge 34's negotiations team. The County consents to a finding of a violation and a remedy.

Neither the employer nor the majority representative may dictate the other's choice of representatives for collective negotiations and grievance processing. N.J.S.A 34:13A-5.4(b)(2) expressly prohibits an employee organization from interfering with restraining, or coercing an employer's selection of its representatives, while 5.4(a)(1) and (5) implicitly prohibit an employer from interfering with, restraining, or coercing an employee organization's selection of its representatives. The Commission has previously found that, with certain exceptions not argued here, an employer violates the Act when it attempts to dictate the composition of the union's negotiations team. In No. Brunswick Bd. of Ed., P.E.R.C. No. 80-122, 6 NJPER 193 (¶11095 1980), we found that the Board violated the Act when it refused to meet with the

4/	Proof of actual interference with the rights of named employees is not necessary to find a violation. Commercial Tp. Bd. of Ed., P.E.R.C. No. 83-25, 8 NJPER 550 (¶13253 1982), aff'd App. Div. Dkt. No. A-1642-82T2 (12/8/83).

union's negotiating team unless non-unit employees were removed. In Boro. of Bradley Beach, P.E.R.C. No. 81-74, 7 NJPER 25 (¶12010 1980), the employer illegally sought to prevent the union from putting new hires on its negotiations team. In Bogota Bd. of Ed., H.E. No. 91-13, 17 NJPER 25 (¶22012 1990), aff'd P.E.R.C. No. 91-105, 17 NJPER 254 (¶22134 1991), the employer violated the Act when it refused to meet with the union negotiations team unless it removed its union president, who had been fired from the district. In Salem Cty., I.R. No. 86-23, 12 NJPER 546 (¶17206 1986) the employer illegally refused to negotiate because the union's negotiator had been suspended for striking his foreman.

I therefore, find that the County violated subsection 5.4(a)(1) and (5) when it refused to recognize Kovach as the Lodge 34 President because of his termination notice, and objected to his participation on the Lodge 34 negotiations committee.

Further, in the absence of a legitimate business justification, I also find that the County's actions in serving Kovach's termination papers across the bargaining table, particularly since that action was immediately followed by an objection to Kovach's participation in negotiations, tended to coerce and intimidate employees and interfere with their rights to assist the employee organization by participating in negotiations, and thus, violated section 5.4(a)(1) of the Act.

Finally, I find no violation of subsections 5.4(a)(2), (3), (4), (5) and (7). There are no facts showing that the County

discriminated against Kovach because of his union activities, dominated Lodge 34, refused to negotiate, or violated the Commission's Rules.

Accordingly, based upon the above findings and analysis, I recommend that the Commission grant Lodge 34's Motion for Summary Judgment regarding subsection 5.4(a)(1) of the Act. I recommend that the Commission dismiss the Complaint with regard to the remaining alleged violations of the Act.

RECOMMENDED ORDER

I recommend that the Commission order:

A. That the County cease and desist from:

1. Interfering with employees' rights under the Act by totally banning Lodge 34 President Frank Kovach from access to County property, preventing him from representing Lodge 34's unit members.

2. Interfering with, coercing and intimidating employees in the exercise of their rights under the Act, particularly, by serving employees with discipline or termination notices during the course of collective negotiations, and by interfering with the composition of the Lodge 34's negotiations committee.

B. That the County take the following affirmative action:

1. Rescind its absolute ban on access for Frank Kovach at the Gormley Justice Complex premises.

2. Grant Kovach reasonable access to County facilities for the purpose of conducting Lodge 34 union business, including representing unit employees in negotiating and administering the contract, representing employees in the investigation, filing and processing of grievances, and representing employees in disciplinary and grievance hearings.

3. Recognize Frank Kovach as long as he remains the duly elected president of Lodge 34.

4. Negotiate in good faith with the FOP's designated negotiations representatives.

5. 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.

6. Notify the Chair of the Commission within twenty (20) days of receipt what steps the Respondent has taken to comply herewith.5/

Susan Wood Osborn

Hearing Examiner

DATED: February 21, 1997

Trenton, New Jersey

5/	Pursuant to N.J.A.C. 19:14-4.8(e), a decision on a motion for summary judgment which resolves the complaint in its entirety may be appealed to the Commission in accordance with N.J.A.C. 19:14-7.3(a).

WE WILL NOT interfere with employees' rights under the Act by totally banning Lodge 34 President Frank Kovach from access to County property, preventing him from representing Lodge 34's unit members.

WE WILL NOT interfere with, coerce and intimidate employees in the exercise of their rights under the Act, particularly, by serving employees with discipline or termination notices during the course of collective negotiations, and by interfering with the composition of the Lodge 34's negotiations committee.

WE WILL rescind the absolute ban on access for Frank Kovach at the Gormley Justice Complex premises.

WE WILL grant Kovach reasonable access to County facilities for the purpose of conducting Lodge 34 union business, including representing unit employees in negotiating and administering the contract, representing employees in the investigation, filing and processing of grievances, and representing employees in disciplinary and grievance hearings.

WE WILL recognize Frank Kovach as long as he remains the duly elected president of Lodge 34.

WE WILL negotiate in good faith with the FOP's designated negotiations representatives.