H.E. No. 83-20

Synopsis:

A Hearing Examiner finds that the Office of the Bergen County Prosecutor committed an unfair practice when Josephine Vantresca was discharged as a result of her conduct during an investigatory interview.

It was found that the Charging Party Vantresca asked for but was denied union representation at the interview. The meeting made it clear that the discharge was a direct result of Vanatresca's conduct at the investigatory interview. Such a discharge is unlawful pursuant to NLRB v. Weingarten, Inc., 420 U.S. 251, 88 LRRM 2689 (1975) and Twp. of E. Brunswick and E. Brunswick PBA Local 145 and Patrolman James Sullivan, P.E.R.C. No. 83-16, 8 NJPER (1982).

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. 83-20, 9 NJPER 83 (¶14046 1982)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

47.311 72.18

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 83-020.pdf
Appellate Division:
Supreme Court:

H.E. NO. 83-20 1. H.E. NO. 83-20 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of OFFICE OF THE BERGEN COUNTY PROSECUTOR, Respondent, -and- Docket No. CO-81-278-39 COUNCIL NO. 5, NEW JERSEY CIVIL SERVICE ASSOCIATION, Charging Party. Appearances: For the Respondent Robert W. Breslin, Jr., Pro Se For the Charging Party Hogan & Palace, Esqs. (Thomas A. Hogan, Esq.) HEARING EXAMINER = S RECOMMENDED REPORT AND DECISION On March 16, 1981, Council No. 5 of the New Jersey Civil Service Association filed an Unfair Practice Charge with the Public Employment Relations Commission (Commission) alleging that the Office of the Bergen County Prosecutor violated the New Jersey Employer-Employee Relations Act, as amended (the Act), when Josephine Vantresca, an employee of the Prosecutor = s Office, was discharged because she exercised protected rights, specifically, she had filed a grievance concerning an evaluation and it was claimed that because of her filing that grievance and her insistence upon union representation in the grievance process her employment was terminated. It was claimed that this conduct violated ' 5.4(a)(1), (2), (3) and (4) of the Act.1/ It appearing that the allegations of the charge, if true, might constitute unfair practices within the meaning of the Act, a complaint was issued by the Director of Unfair Practices on September 17, 1981, pursuant to which a hearing was originally scheduled for January 6 and 7, 1982, and the matter was ultimately heard on April 5, 1982. Both parties were given an opportunity to present evidence, examine and cross-examine witnesses and argue orally. Both parties submitted briefs which were received by May 24, 1982. Joseph Vantresca was employed as a Legal Stenographer with the Office of the Bergen County Prosecutor on June 16, 1980. Vantresca was evaluated pursuant to a newly instituted procedure.2/ Mrs. Vantresca was unhappy with her evaluation and on Friday, February 6, 1981, she phoned the Office Manager, James Murphy, to discuss her complaint. Mr. Murphy declined to discuss the evaluation with her and told her she would have to follow the proper appeal procedure. (Vantresca also filed a grievance about the evaluation and wrote a letter protesting the evaluation and addressed it to Prosecutor Breslin, First Assistant Leaman and Office Manager Murphy.) That afternoon Vantresca = s supervisor reported to Murphy that Vantresca had been absent without authorization from her desk at the steno pool for over an hour. During this same period, Vantresca was observed talking with the President of Council No. 5, Agnita Hastings. [Vantresca testified that no such meeting took place.] Murphy relayed this information to First Assistant Leaman and at 4:30 p.m. Leaman called Vantresca into his office. Vantresca was accompanied by Hastings. Leaman refused to meet with the Association representative present and no meeting took place. On the following Monday morning Breslin called Vantresca into his office. Murphy and Leaman were present. Breslin, Murphy and Leaman all testified that Vantresca immediately asked to have her Association representative Hastings present. It is noted that Vantresca testified that she did not ask for her representative because the Prosecutor A did not give her enough time. @ Here, one must credit the testimony of the Prosecutor and his staff since all three men had the same perception, particularly since this testimony amounts to an admission. I accordingly find that Vantresca did ask that her union representative, Agnita Hastings, be present.3/ Breslin denied Vantresca = s request to have Hastings present. Breslin testified that he had reviewed Vantresca = s file over the prior weekend and decided that he wasn = t going to take any disciplinary action against her, rather, he just wanted to talk to her about her disruptive behavior. However, Murphy testified that Breslin wanted Vantresca to explain her behavior and I am satisfied that it was reasonable for Vantresca to believe that this meeting was investigatory in nature in light of her filing a grievance and other activities relating to the evaluation. As Vantresca testified, when she was called into the Prosecutor = s office, she knew that on the basis of the events of Friday, she A was in trouble. @ Breslin told Vantresca that she was a disruptive force in the steno pool with her constant criticizing but he believed that on the whole she had a good evaluation and did not understand why she was so upset. Breslin then told Vantresca to go back to her desk, keep her mouth shut and stop criticizing and disrupting the steno pool. But Vantresca kept arguing with Breslin. Breslin believed that Vantresca = s reaction was insubordinate. A She raised her voice almost to the point of shouting, refused to acknowledge that she was anything but perfect and went on and on in that vein. @ Breslin told her that, A I don = t think this is going to continue @ and he told her her employment was terminated. Breslin testified that he terminated A her because of the way she reacted in my office on that morning. @ Vantresca testified that Breslin asked her A what right (she) had calling the union? This is my domain. I am the chief and you have no business calling in the union. @ Vantresca = s testimony is in accord with Breslin = s that he first told her to return to her desk but after she protested and A defended herself @ Breslin told her she was fired. Breslin = s own testimony is that Vantresca was discharged due to her responses to Breslin = s comment at the interview on Monday morning. The right to union representation during disciplinary interviews is well established. See NLRB v. Weingarten, Inc., 420 U.S. 251, 88 LRRM 2689 (1975).4/ Twp. of E. Brunswick and E. Brunswick PBA Local 145 and Patrolman James Sullivan, P.E.R.C. No. 83-16, 8 NJPER ___ (1982); In re E. Brunswick Bd/Ed, P.E.R.C. No. 80-31, 5 NJPER 398 (1979); Camden Cty. Vocational-Technical School, P.E.R.C. No. 82-16 7 NJPER 466 (1981); In re Cape May Cty., P.E.R.C. No. 82-7, 7 NJPER 432 (1981). In the instant case Vantresca = s right to representation had been violated and the interview was unlawful. Further Vantresca = s discharge was a direct outgrowth of this unlawful meeting. It follows that the discharge itself was unlawful. I therefore recommend that the Commission find that Roger Breslin as Bergen County Prosecutor did violate N.J.S.A. 34:13A-5.4(a)(1) and (3) of the Act. No evidence was adduced at the hearing to demonstrate a violation of ' 5.4(a)(4). It is therefore recommended that this subsection be dismissed. Vantresca = s attorney stated that Vantresca is not seeking reinstatement by way of remedy and no demand was made for back pay. Accordingly, I will not recommend reinstatement or back pay as a remedy here. Recommended Order I recommend that the Commission ORDER: A. That the Respondent Office of the Bergen County Prosecutor cease and desist from: 1. Interfering with, restraining or coercing its employees in the exercise of the rights guaranteed to them by the Act, particularly, by refusing employee = s request, such as that of Josephine Vantresca, for representation by a representative of N.J.C.S.A. Council #5 at meetings where an employee might reasonably anticipate that discipline may result. 2. 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 the Act, particularly, by refusing employees = requests, such as that by Josephine Vantresca, for representation by an N.J.C.S.A. Council #5 representative at meetings where an employee reasonably anticipates that discipline may result. B. That Respondent Office of the Bergen County Prosecutor take the following affirmative action. 1. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix A A. @ Copies of such notices on forms to be provided by the Commission, shall be posted immediately upon receipt thereof, and after being signed by the Respondent = s authorized representative, shall be maintained by it for a period of at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent to ensure that such notices are not altered, defaced or covered by other materials. 2. Notify the Chairman of the Commission within twenty (20) days or receipt what steps the Respondent has taken to comply herewith. /s/Edmund G. Gerber Hearing Examiner DATED: December 21, 1982 Trenton, New Jersey 1/ These subsections prohibit public employers, their representatives or agents from: A (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 or complaint or given any information or testimony under this act. @ 2/ This procedure was instituted in February of 1981. 3/ Given the charged nature of the meeting it is not surprising that Vantresca = s recollection of the conversations is faulty. 4/ The NLRB does not distinguish investigatory interviews from disciplinary interviews. Baton Rouge Water Works Co., 246 NLRB No. 161 (1979); Certified Grocers of California, 227 NLRB No. 52, 94 LRRM 1279 (1977). ***** End of HE 83-20 *****