H.E. NO. 80-47

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

BOROUGH OF SEASIDE PARK,

Respondent,

-and-	Docket No. CI-80-7-49

ARTHUR CLARKE,

Charging Party.

Appearances:

For the Borough of Seaside Park

Hiering, Grasso, Gelzer & Kelaher, Esqs.

(Robert C. Shea, Esq.)

For Arthur Clarke

Sachar, Bernstein, Rothberg, Sikora & Mongello, Esqs.

(Kieran E. Pillion, Jr., Esq.)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on August 30, 1979, which was amended on October 1, 1979, by Arthur Clarke (hereinafter the "Charging Party" or "Clarke") alleging that the Borough of Seaside Park (hereinafter the "Respondent" or the "Borough") 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 Respondent, as a result of organizational activities among certain of its lifeguards led by Clarke and a Joseph Reilly in the summer of 1978, did not during May 1979, as was customary, send a letter to Clarke with respect to his desires to return as lifeguard for the 1979 season. Out of the approximately 30 lifeguards employed by the Respondent in the summer of 1978, only Clarke and Reilly did not receive letters in May 1979 and, it is alleged that the failure to hire Clarke for the summer of 1979 was in retaliation for his organizing activities in the summer of 1978, all of which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1), (2), (3) and (4) of the Act.1/

It appearing that the allegations of the Unfair Practice Charge, as amended, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on January 7, 1980. Pursuant to the Complaint and Notice of Hearing, hearings were held on March 3, 4 and 5, 1980 in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Both parties waived oral argument and the filing of post-hearing briefs on March 5, 1980.2/

An Unfair Practice Charge, as amended, 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 entire record, including a post-hearing exhibit on behalf of the Charging Party, 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 Borough of Seaside Park is a public employer within the meaning of the Act, as amended, and is subject to its provisions.

2.	Arthur Clarke is a public employee within the meaning of the Act, as amended, and is subject to its provisions.3/

3. At the end of July 1978 Clarke, Reilly and two other lifeguards4/ prepared an unsigned "letter," which contained enumerated instances reflecting adversely upon "...the quality of water safety on the Borough's beaches."5/ This "letter" was presented by Clarke and Reilly to members of the Beach Committee of the Respondent, consisting of Council Harms and Councilwoman Mitchell, on July 31, 1978 (1 Tr. 22, 23). Based upon the reaction of the Beach Committee to the "letter," Clarke and others of the lifeguards decided that they "needed more clout" and, thereafter Clarke and 15 lifeguards, who had worked at least three years on the Beach Patrol, signed the "letter" on August 3, 1978 (CP-3; 1 Tr. 23, 26, 27).

4. Clarke and Reilly presented the signed "letter" to the Respondent's Mayor and Council at a regular meeting on August 10, 1978 and, after discussion, the Council decided to hold a special meeting on the subject on August 14, 1978 (CP-4).

5. At a preliminary private meeting on August 11, 1978 between the Respondent's Beach Committee6/ and the 16 lifeguards, at which the contents of the "letter" (CP-3) were discussed, it was agreed that Clarke and Reilly would be the spokesmen at the special meeting on August 14, 1978.7/

6.	At the special Council meeting on August 14, 1978 Clarke and Reilly made a point-by-point presentation with respect to the safety matters contained in the "letter" (CP-3) and, as the minutes (CP-5) indicate, "Conclusions" were reached by the Council as to the various points raised. Regarding Point No. 8, which was that a list of lifeguards not recommended by the Captain for hiring for the next year must be explained, and that this list should be made public by Labor Day, the "Conclusion" reached by the Council was that the recommendation for hiring or not hiring would be made at the end of the season by the Captain "after an evaluation" (CP-5, p. 3). By way of clarification of the authority of the Captain, Councilman Maday explained that the Captain had the "right to hire and fire" but that the Beach Committee had to be advised "first" (CP-5, p. 5).

7.	Clarke received an evaluation from the Captain, Richard P. Keppler, Jr., on September 4, 1978 (CP-6). This evaluation by Keppler rated Clarke as "good" in three categories, "average" in one category and "poor" in four categories.8/ In response to Clarke's inquiry about returning in the Summer of 1979, Keppler testified that if he was Captain in 1979 Clarke would not be back (3 Tr. 24, 25, 31), giving as the reason job-related problems, including an incident of alleged insubordination by Clarke (3 Tr. 30, 36). Keppler denied that Clarke's activities in connection with the "letter:" (CP-3), which was critical of the Captain, played any part in Keppler's evaluation of Clarke or his decision on Clarke's rehire for 1979 (3 Tr. 36, 37).

8.	Although there was no formal organization of the lifeguards in 1978, the lifeguards group was identified by Clarke as the "Senior Guards" (1 Tr. 56, 100). It was Clarke's intention, on behalf of the other lifeguards, to "...definitely start an organization..." if he was rehired by the Respondent in 1979 (1 Tr. 58).

9.	On March 17, 1979 Clarke met with John T. Moyse, who was then Chairman of the Beach Committee,9/ for the purpose of ascertaining whether or not he, Clarke, would be returning as a lifeguard for the Summer of 1979. Moyse said that no final decision had been made regarding employment at that point, but that Keppler had recommended that Clarke, Reilly and two other lifeguards10/ not be rehired for the Summer of 1979. Moyse invited Clarke to talk to him again in two weeks, after the Council had reviewed Keppler's recommendations.11/ On April 7, 1979 Clarke again spoke to Moyse, at which time Moyse told Clarke that he would not be rehired for the Summer of 1979, nor would Reilly be rehired, but that the other two lifeguards would be rehired inasmuch as the "Borough didn't want to seem to be too vindictive over our organization the previous Summer..." (1 Tr. 65).12/

10.	Clarke earned $24 per day as a lifeguard for the Respondent in the Summer of 1978. During the Summer of 1979 Clarke was employed as a lifeguard at Island Beach State Park where he earned $25.20 per day. (1 Tr. 70).

THE ISSUE

Did the Respondent Borough violate the Act when its Council, acting on the recommendation of the Captain of the Beach Patrol, an agent of the Respondent, failed to rehire Arthur Clarke as a lifeguard for the Summer of 1979?

DISCUSSION AND ANALYSIS

The Respondent Borough Violated

Subsection (a)(3) Of The Act, And

Derivatively Subsection (a)(1) Of

The Act,13/ When Its Council, Acting

Upon The Recommendation Of Its

Agent, The Captain Of The Beach

Patrol, Failed To Hire Arthur Clarke

As A Lifeguard For The Summer Of 1979

Based upon the foregoing Findings of Fact, the Hearing Examiner finds and concludes that the Charging Party has proven by a preponderance of the evidence that the Respondent Borough violated Subsection (a)(3) of the Act because the action of its Council in failing to rehire Clarke as a lifeguard for the Summer of 1979 was "...motivated, at least in part, if not exclusively, by (anti-) union animus:" Brookdale Community College, P.E.R.C. No. 78-80, 4 NJPER 243 (1978),14/ aff'd., App. Div., Docket No. A-
4824-77 (Jan. 9, 1980). It is noted that the Charging Party preliminarily proved that he was exercising rights guaranteed to him by the Act,15/ and that the Respondent had actual or implied knowledge of such activity: Haddonfield, supra (3 NJPER at 72).

In so finding and concluding, the Hearing Examiner notes that the Respondent has failed to establish any legitimate business justification for its decision not to rehire Clarke for the Summer of 1979. The Hearing Examiner rejects as pretextual the Council's reliance upon Keppler's adverse evaluation of Clarke on September 4, 1978, and Keppler's recommendation, either to the Council as a whole or to its Beach Committee, that Clarke not be rehired as a lifeguard in 1979.16/ The Hearing Examiner basis this rejection upon the following:

1.	The Hearing Examiner refuses to credit Keppler's denial that Clarke's activities in the Summer of 1978 with respect to the "letter" (CP-3), which was highly critical of Keppler, played any part in Clarke's adverse evaluation by Keppler or Keppler's negative decision on Clarke's eligibility for rehire in 1979. The Hearing Examiner notes that Clarke had been employed by the Respondent as a lifeguard for the years 1974-1977 without any apparent problems in his performance. Although Keppler reached the same decision with respect to Reilly, Alloco and Fox (3 Tr. 53), it is only Clarke who is the subject of the instant charge of unfair practices.

2.	The Hearing Examiner also points to the undisputed testimony of Clarke that Councilman Moyse told Clarke on April 7, 1979 that Clarke and Reilly would not be rehired, but that the other two lifeguards would be rehired inasmuch as the "Borough didn't want to seem to be too vindictive over our organization the previous Summer..." (See Finding of Fact No. 9, supra).

3.	Although the consequences only directly affected Clarke, the Hearing Examiner takes specific note of the undisputed statement by Councilwoman Mitchell on August 10 or August 11, 1978 that, "If we do not fire you for this (the "letter": CP-3), we will fire you for something else" (see footnote 7, supra). The Hearing Examiner concludes that the foregoing statement by a Council member is evidence of anti-union animus attributable to the Respondent.

Having found and concluded that the Respondent failed to establish a legitimate business justification for its failure to rehire Clarke as a lifeguard for the Summer of 1979, the Hearing Examiner holds that the Respondent violated Subsections (a)(1) and (3) of the Act by its conduct herein. However, the Charging Party having failed to adduce evidence of a Subsection (a)(2) and (4) violation of the Act by the Respondent, the Hearing Examiner will recommend dismissal as to these Subsections.

* * * *

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

CONCLUSIONS OF LAW

1.	The Respondent Borough violated N.J.S.A. 34:13A-
5.4(a)(3), and derivatively 5.4(a)(1), when it failed to rehire Arthur Clarke as a lifeguard for the Summer of 1979.

2.	The Respondent Borough did not violate N.J.S.A. 34:13a-
5.4(a)(2) and (4) inasmuch as the Charging Party failed to adduce any evidence of violation of these Subsections.

RECOMMENDED ORDER

The Hearing Examiner recommends that the Commission ORDER:

A.	That the Respondent Borough 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 to hire lifeguards, such as Arthur Clarke, because of their exercise of such rights.

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 failing to rehire Arthur Clarke as a lifeguard for the Summer of 1979.

B.	That the Respondent Borough take the following affirmative action:

1.	Rehire Arthur Clarke as a lifeguard for the Summer of 1980 and compensate him at the rate of pay he would have received had he worked in each successive summer since 1974.

2.	Forthwith make payment to Arthur Clarke of any monies due him based upon the difference between his earnings as a lifeguard at Island Beach State Park in the Summer of 1979 and what he would have received if employed as a lifeguard for the Respondent in the Summer of 1979.

3.	Post at all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix "A." Copies of such notice, 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 material.

4.	Notify the Chairman or the Commission within twenty (20) days of receipt what steps the Respondent has taken to comply herewith.

C.	That the allegations in the Complaint that the Respondent violated Subsections 5.4(a)(2) and (4) of the Act be dismissed in their entirety.

_________________________

Alan R. Howe

Hearing Examiner

DATED:	May 16, 1980

Trenton, New Jersey