H.E. NO. 80-47 1.
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 A Commission @ ) on August 30, 1979, which was amended on October 1, 1979, by Arthur Clarke (hereinafter the A Charging Party @ or A Clarke @ ) alleging that the Borough of Seaside Park (hereinafter the A Respondent @ or the A 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 A 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 A letter, @ which contained enumerated instances reflecting adversely upon A ...the quality of water safety on the Borough = s beaches. @ 5/ This A 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 A letter, @ Clarke and others of the lifeguards decided that they A needed more clout @ and, thereafter Clarke and 15 lifeguards, who had worked at least three years on the Beach Patrol, signed the A letter @ on August 3, 1978 (CP-3; 1 Tr. 23, 26, 27).
4. Clarke and Reilly presented the signed A 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 A 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 A letter @ (CP-3) and, as the minutes (CP-5) indicate, A 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 A 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 A 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 A right to hire and fire @ but that the Beach Committee had to be advised A 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 A good @ in three categories, A average @ in one category and A 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 A 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 A Senior Guards @ (1 Tr. 56, 100). It was Clarke = s intention, on behalf of the other lifeguards, to A ...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 lifeguards 10/ 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 A 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 A ...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 A 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 A 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, A If we do not fire you for this (the A 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 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
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, petition or complaint or given any information or testimony under this Act. @
2/ The transcript of the March 5, 1980 hearing was not received by the Hearing Examiner until March 31, 1980. Further, at the conclusion of the hearing on March 5, 1980 the record was left open for the receipt of further Charging Party Exhibits. Counsel for the Charging Party submitted the last Charging Party Exhibit on May 6, 1980 and indicated that there would be nothing further on behalf of the Charging Party; the Respondent did not respond thereafter.
3/ Counsel for the Respondent refused to stipulate that Clarke was a public employee within the meaning of the Act for reasons not placed upon the record, but which are contained in Respondent = s Answer (C-2). Because of the allegation by Clarke that he worked in the Summer of 1979 as a lifeguard at Island Beach State Park, the Respondent contends that Clarke had obtained A other regular and substantially equivalent employment @ within the meaning of Section 3(d) of the Act and is, therefore, not a A public employee @ vis-a-vis the Respondent. The Hearing Examiner finds and concludes that Clarke is a A public employee @ within the meaning of the Act, as amended, without regard to whether or not employment at Island Beach State Park constitutes A other regular and substantially equivalent employment @ from that of employment with the Respondent. The actions of the Respondent, about which Clarke complains, occurred before employment with Island Beach State Park. Also, the fact that Clarke, whose summer employment with Respondent dates back to 1974, is a A seasonal employee @ does not disqualify him from public employment status under the Act: Borough of Avalon, H.E. No. 79-30, 5 NJPER 71, 74 (1979) (settled without Commission decision.)
4/ Gerard Alloco and John Fox.
5/ Certain derelictions of the Captain of the Beach Patrol were specifically alleged.
6/ The members present were Councilmen Appleby and Maday and Councilwoman Mitchell.
7/ At either the regular meeting on August 10, 1978, supra , or the preliminary private meeting on August 11, 1978, Councilwoman Mitchell made a statement, which was directed to all 16 of the lifeguards who had signed the A letter @ (CP- 3), that, A If we do not fire you for this, we will fire you for something else @ (1 Tr. 61, 62, 112, 113; 2 Tr. 5, 6, 83, 114).
8/ One other evaluation was offered in evidence by the Charging Party, that of John Lavin (CP-11), which indicated that Lavin was rated A good @ in one category, A average @ in five categories and A poor @ in two categories. Alloco, whose evaluation was not offered in evidence, nevertheless testified that his evaluation was essentially similar to Clarke = s evaluation (2 Tr. 92, 93). Unlike Clarke, Lavin and Alloco were among the lifeguards who were asked to return in the Summer of 1979, but both chose not to do so. It is noted that Alloco was one of the lifeguards who drafted the A letter @ (CP-3) in July 1978 and that Keppler and the Council had knowledge of his activities on behalf of the lifeguards (1 Tr. 21; 2 Tr. 95, 96).
9/ Moyse became a Councilman as of January 1, 1979.
10/ Alloco and either Michael Moran or Jon Fox (Cf ., 1 Tr. 63, 65 and 2 Tr. 17, 3 Tr. 53).
11/ Keppler was rehired by the Council in March or early April 1979 as Captain for the Summer of 1979 (2 Tr. 21).
12/ This testimony of Clarke was not contradicted by Moyse, who was called as a Charging Party witness. Moyse testified that Clarke was not rehired for the Summer of 1979 because of the adverse recommendation of Keppler and that the evaluation of Clarke by Keppler (CP-6) was also considered by the Council in its decision not to rehire Clarke (2 Tr. 23, 24, 27-29).
13/ See Galloway Township Board of Education, P.E.R.C. No. 77-3, 2 NJPER 254, 255 (1976).
14/ As precedent, the Commission cited its standard for a Subsection (a)(3) violation in Haddonfield Borough Board of Education, P.E.R.C. No. 77-31, 3 NJPER 71, 72 (1977) and City of Hackensack, P.E.R.C. No. 77-49, 3 NJPER 143, 144 (1977), rev = d. on other grounds, 162 N.J. Super . 1 (App. Div. 1978), aff= d. as modif., 81 N.J . 1 (1980). Further, for a Subsection (a)(3) violation to be found the actions of the public employer must be A discriminatory @ (see Haddonfield, supra ) and must have been committed with a A discriminatory motive @ (see Cape May City Board of Education , P.E.R.C. No. 80-87, 6 NJPER 45, 46 (1980)).
15/ In this connection, the Hearing Examiner notes Clarke = s involvement in the preparation of the A letter @ (CP-3) pertaining to water safety, which was impliedly critical of the Council and specifically critical of the Captain of the Beach Patrol (Keppler), which Clarke signed on August 3, 1978, and which Clarke, along with Reilly, presented to the Council at a regular meeting on August 10, 1978 and in more detail at a special meeting on August 14, 1978 (see Findings of Fact Nos. 3, 4, 6, supra).
16/ Clearly, Keppler, having the authority to effectively recommend as to hiring and firing of lifeguards, was a supervisor and agent of the Respondent and the Respondent was responsible for his actions and conduct. See, e.g., S & M Grocers, Inc., 236 NLRB No. 210, 98 LRRM 1471 (1978); American Lumber Sales, Inc., 229 NLRB No. 66, 95 LRRM 1237 (1977); and Propak Corp., 225 NLRB No. 160, 93 LRRM 1048 (1976).***** End of HE 80-47 ***** |