H.E. NO. 78-5

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

INTERNATIONAL ASSOCIATION OF

FIRE FIGHTERS, LOCAL 2081, AFL-CIO,

Respondent,

-and-	Docket No. CE-76-45-19

CITY OF HACKENSACK,

Charging Party.

____________________________________

CITY OF HACKENSACK,

Respondent,

-and-	Docket Nos. CO-76-272-20

CO-77-3-21

INTERNATIONAL ASSOCIATION OF

FIRE FIGHTERS, LOCAL 2081, AFL-CIO,

Charging Party.

Appearances:

For International Association of Fire Fighters Local 2081, AFL-CIO, Nicholas Sarapuchiello (President of Local 2081)

For City of Hackensack, Murray, Meagher & Granello

(James P. Granello, Of Counsel; Robert M. Tosti, Esq., On the Brief)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

The International Association of Fire Fighters Local 2081, AFL-CIO (the "Association") filed two Unfair Practice Charges with the Public Employment Relations Commission (the "Commission") alleging that the City of Hackensack (the "City") had committed unfair practices within the meaning of the New Jersey Employer-Employee Relations Act (the "Act").1/ The first alleges that the City denied Association Secretary, Richard Winner, attendance in a representative capacity at a disciplinary hearing for Fire Fighter J. Warcholowski and this conduct constituted an attempt to interfere with the proper representation of all fire fighters the Association represents.2/ The other charge alleges that the City compelled Winner's attendance at a meeting on March 26, 1976, in his capacity as representative of the Association, and while at this meeting, which concerned the disposition of a grievance, the City did verbally abuse Winner and, later, threatened him in writing.3/ It is claimed that this conduct violated §5.4(a)(1), (2), (3), (4), (5) and (7) of the Act.

The City filed an Unfair Practice Charge with the Commission4/ alleging that the conduct of Winner at the above-
mentioned March 26 meeting, as well as the Association's conduct prior to the meeting, constituted coercion, interference and a refusal to bargain in good faith.5/6/

It appearing that the allegations of the charges if true might constitute unfair practices within the meaning of the Act, three Complaints and Notices of Hearing were issued on August 26, 1976 along with an Order Consolidating Cases, and a hearing was held before the undersigned on October 4 and 5, 1976.7/ The two complaints growing out of the March 26 meeting involve the same incident and will be dealt with as a unit.

Richard Winner is the secretary of Local 2081. On March 1, he, in conjunction with the Local President Nicholas Sarapuchiello, wrote a letter to Fire Chief Charles H. Jones stating,

"The Local has and is becoming increasingly aware of literature being posted on bulliten [sic] boards by the F.M.B.A.

This Local would like to be advised as to the nature of this material and given the opportunity to review same before posting.

We consider this to be an unfair labor practice by the Fire Dept. and the F.M.B.A.

This Local was only given the use of the bulliten [sic] board after a contractual agreement was reached."

The letter was signed by both Winner and Sarapuchiello. The Chief's secretary called the Association officers to arrange for a meeting between the parties to discuss this letter.8/ Although the dates for a meeting were discussed, no meeting was held.

On March 23, Winner's company was on duty at fire headquarters. Chief Jones happened to see Winner and had him paged in order to speak to him about the bulletin board. When Winner arrived at the chief's office, Deputy Chief Aiellos was also present. The testimony of the parties is conflicting as to what happened at the meeting.

Winner testified that upon his entrance into the office, the Chief stated he was going to conduct the meeting requested in the letter of March 1. Winner replied that he was not authorized to conduct a union meeting and the local president Sarapuchiello would have to be in attendance. Chief Jones responded that "He was going to have a meeting, that it [apparently the bulletin board matter] had gone far enough and he had waited long enough and it was his decision, he was going to have the meeting right now and he was not going to wait on it." The Chief thereupon related to Winner he had gone over the letter and reached a decision that the bulletin boards on City property were public property and anybody could post anything they wanted.

Thereupon, according to Winner, the Chief seemed to lose complete control of himself and said "If I didn't like it I could stick it up my ass," and continued a "tirade of statements" where upon Winner opened the office door and called upon a clerk and a secretary in the outer office to witness the Chief's conduct but, Winner stated, they "both buried their heads and refused to even recognize the fact that I was in the room." Winner then walked back into the office and the Chief was screaming, "Get the hell out of here," at which point Winner left.

Jones testified that Winner stated something to the effect that he [Winner] couldn't conduct the meeting on his own. The chief responded, "Well it's not going to be really a meeting. I just want to give you my answer to the letter specifically, that the bulletin boards can be used by anybody." Jones acknowledged that Winner asked him to put his decision in writing but he refused. Jones claims that at this point Winner jumped up and he mumbled something about "ass," and went out of the room, Jones heard him repeat the phrase outside, but doesn't know what else he said; he couldn't hear it. Winner came back into the office and said something about wanting to bring in the shop steward to hear this. At this point, Jones had Winner leave his office. Aiellos' testimony was substantially in accord with Jones'. Both Jones and Aiellos denied that the Chief used abusive language.

On March 24, 1976, Jones had the following letter placed in Winner's file:

"You are hereby put on notice that as a result of your conduct in my office in the presence of Deputy Chief A. Aiellos on March 23, 1976, if you ever use profanity again, either to me or in front of my office personnel, you will be brought up on charges."

The Association claims that placing this letter in Winner's file was disciplinary in nature and was both coercive and discriminatory with the intent to discourage protected activity.

The undersigned finds the letter is clearly disciplinary; it contains a warning that Winner faces a hearing if he uses profanity again.

After evaluating all the testimony, observing the witnesses and evaluating whether they testified in a candid, forthright and consistent manner, the undersigned finds that Winner's testimony was more credible than that of Jones' and Aiellos'. This finding is based on a number of factors. Jones consistently avoided admitting anything which might be considered adverse to his position by repeatedly stating that he couldn't recall the facts. Obviously just because a witness has a bad memory doesn't mean he is not credible. Here, however, a very convenient pattern emerged that leads the undersigned to the conclusion that the witness was less than candid. The undersigned also finds it less than credible that neither Jones nor Aiellos could understand anything that Winner stated other than the word "ass" but they both heard it twice. Also, Aiellos initially testified that Winner was shouting. Then later, on redirect testimony, Aiellos changed his testimony and stated that Winner could not have been shouting because the only thing he could pick out in what Winner was saying was the word "ass."9/ This change in testimony raises a doubt as to the veracity of Aiellos' testimony.

Accordingly, I find that Jones did use the abusive language and Winner merely repeated what Jones had said. Jones took advantage of this repetition and used it as an excuse to discipline Winner.10/ Winner was in Jones' office in his capacity as a representative of the employee association, and disciplining Winner in such a less than honest way is violative of §(a)(3) of the Act. The true purpose of Jones' action was to discriminate against Winner for the purpose of discouraging his Association activity.11/

Moreover, it is not necessary to find that Jones wrongfully accused Winner of the use of derogatory language in order to find that the City was guilty of an unfair practice.

Winner was called into the Chief's office not as an employee but, rather, as secretary of the Local. He was in effect processing a grievance. Accordingly, Winner was engaged in protected activity when the offensive language was used. Under §5.3 of the Act,

"public employees shall have, and shall be protected in the exercise of, the right, freely and without fear of penalty or reprisal to form, join and assist any employee organization. Public employers shall negotiate written policies setting forth grievance procedures by means of which their employees or representatives of employees may appeal the interpretation, application or violation of the policies, agreements, and administrative decisions affecting them..."

An employee may not act with impunity even though he is engaged in protected activity. An employee's rights under §5.3 must be balanced by an employer's right to maintain order and offensive conduct which is gratuitous or patently opprobrious may remove the protection of §5.3. Here, however, Winner, according to Jones only mumbled the word "ass". The relationship between the parties was not good. As a matter of administrative notice Winner has been involved in a number of administrative and judicial actions with the City and Chief Jones. Winner was compelled to attend this meeting against his will and in view of the nature of the meeting, the use of such language, while certainly inappropriate, was not entirely unprovoked and, under the circumstances, the §5.3 rights of Winner should be preserved. In Crown Central Petroleum, 430 F.2d 724, 74 LRRM 2855 (7th Cir. 1965),12/ a Circuit Court of Appeals held, disciplinary action taken by an employer against employees for their insubordinate statements directed at supervisors was unlawful. The court stated that although management does have the right to discipline employees, "that right is not immune from challenge as a primary violation of §8(a)(1). When then considered, the motive behind an employer's conduct is not an element of the unfair labor practice charge" and, even if the employer acted in good faith, if the employer's conduct tends to interfere with the rights of employees it is violative of §8(a)(1) of the National Labor Relations Act.

So, too, in the instant case, even if the facts were as Jones testified, placing the notice in Winner's file for abusive language used during activity protected by §5.3 constitutes a §5.4(a)(1) violation.

The Association in its charge also alleged that the City interfered with the right of the Association to be represented by a representative of its own choosing and, further, that the City refused to process a grievance in violation of §(a)(1) and §(a)(5) respectively.13/

Taking the latter charge first, it is significant that one year prior to the incident in question, in 1975, the Association raised the very same issue with the Chief. Jones had a meeting with officers of the Association (Winner and Sarapuchiello apparently were not officers of the Local at this time). The meeting was followed by a series of letters in which the Chief refused the Local exclusive access to the bulletin board.14/ This was all Jones was obligated to do under the contract's grievance procedure.15/ No evidence was adduced as to whether the union appealed Jones' decision via the grievance procedure of the contract. In any event, Winner and Sarapuchiello's letter a year later was addressed to the same issue under the same contract although Jones had already processed the grievance in question. There is nothing in §(a)(5) of the Act which requires an employer to reconsider or reprocess the same grievance, under the same contract, absent some change in circumstances. Accordingly, Jones had no duty to process the grievance.

In the private sector it is well settled that an employee organization has a basic, but not absolute, right to be represented in grievance procedures and negotiations by representatives of their own choosing - see General Electric Co. v. NLRB, 412 F.2d 512, 71 LRRM 2418 (2nd Cir. 1969). The language of §5.3 of the Act certainly seems to grant the same right. The question here is whether Jones' conduct in compelling Winner's attendance at the meeting violated this right. Jones testified that he told Winner he merely wanted to give Winner a message to take back to the union. Winner characterizes Jones to be rather more abusive. It is clear though that Jones did not intend to get involved in a give-and-take discussion, but rather was only prepared to give Winner his decision. Moreover, Jones was not obligated to conduct a grievance meeting to begin with. Jones' actions therefore in requiring Winner's presence even in his capacity as an employee representative falls short of dictating to the Association who will represent it during the processing of a grievance. Accordingly, I do not find the City violated §5.4(a)(5) of the Act.

In their brief the City alleges the Association committed an unfair practice by demanding a "noncontractual benefit" which would interfere with, restrain or coerce employees who are not Association members. The City also claims the Association, in writing the demands for exclusive access to the bulletin board, attempted a unilateral change in the collective negotiations contract and/or an attempt to force the City to accede to its demands under threat of filing of an Unfair Practice Charge.16/

In Union County Regional Board of Education, supra, the Commission held that an exclusive access clause of a contract is not an illegal subject of negotiations.17/ For the reasons set forth in that decision, permitting the Association exclusive access to bulletin boards would not be violative of nonmember rights.

It is noted that the bulletin board in question was supplied by the Association on the basis of an understanding with the Chief. After the bulletin board was implaced, Jones would not allow the Association exclusive access. The conduct of Jones in these circumstances, if nothing else, raises an issue which is suitable for resolution by the grievance process. There is no evidence before me that the instant action was instituted with the intent to coerce the City into giving in to the Association grievance. The undersigned can find no action on the part of the Association which constitutes an unfair practice.

The facts of the second incident are not in dispute. On February 27, 1976, a disciplinary hearing involving Fire Fighter Warcholowski was scheduled before Chief Jones. Dominick Venanzi, the Vice-President of the Local, and Richard Winner were present in their capacity as officers of the Association. Venanzi was prepared to represent Warcholowski and Winner was there to take notes.

Venanzi testified that just prior to the hearing the Chief stated that the Association was entitled to only one representative at the hearing and since Venanzi was representing both the Local and Warcholowski, Winner could not attend the hearing. No evidence was introduced that Winner was denied admittance at the hearing for any other reasons. The contract is silent as to the number of representatives at such a hearing. There was testimony concerning representation at prior hearings, but no pattern emerged as to any clear or consistent past practice.

The employer does not dispute the right of employees to be represented at disciplinary hearings; accordingly, the basic right of representation is not an issue here. Rather, the only thing to be decided is whether it is an unfair practice to refuse to allow more than one representative at the hearing. The Respondent points to NLRB v. Weingarten, Inc., 420 U.S. 251, 43 L.Ed. 2d 171, 95 S.Ct. 959, 88 LRRM 2689 (1975) where the U.S. Supreme Court found §7 of the National Labor Relations Act, [which states that employees have the right to engage in "concerted activities for...mutual protection,"] grants to employees the right to have his own union representative at an employee's investigatory interview when the employee might reasonably believe that such an interview could result; in disciplinary action against him.18/ A reading of the decision makes it clear the court was referring to a single representative and the Respondent urges that it would be over-reaching to find a greater right in the Act.

Significantly, no evidence was introduced by the Association to demonstrate that Warcholowski could not receive adequate representation of his own choosing.

It is not unreasonable for the City to limit the number of representatives at a hearing for the purpose of maintaining order and, as in a typical courtroom situation, one competent representative should, in most cases, be able to adequately represent the interests of the individual in question and the Association. Accordingly, the burden of proof here must be on the Association to prove that they could not receive adequate representation.19/ Since the Association failed to prove they did not receive adequate representation, the undersigned finds the City did not commit an unfair practice in limiting the representation at Warcholowski's hearing to one person.

RECOMMENDED ORDER

Accordingly, for the reasons set forth above, the undersigned hereby recommends the Commission issue an ORDER that the City of Hackensack to

1.	Cease and desist from:

a.	Interfering with, restraining or coercing employees in the exercise of rights guaranteed to them by the Act.

b.	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.

2.	Take the following affirmative action:

a.	Remove from Fire Fighter Winner's file the letter of March 24, 1976 which warned Winner that if he used offensive language again he would be brought up on charges.

b.	Post at Fire Headquarters in a conspicuous place the copies of the attached notice marked as Appendix "A". Copies of such notice, on forms to be provided by the Director of Unfair Practices of the Public Employment Relations Commission, shall be posted by the Board immediately upon receipt thereof, after being duly signed by the Board's representative, and shall be maintained by it for a period of at least sixty (60) consecutive days thereafter in conspicuous places including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Board to ensure that such notices are not altered, defaced or covered by any other material.

c.	Notify the Director of Unfair Practices within twenty (20) days of receipt of this Order what steps the Board has taken to comply herewith.

d.	It is further recommended that the Commission order those portions of the Complaint which charge the City with violations of §5.4(a)(2), (4), (5) and (7) be dismissed.

e.	It is further recommended that the Commission order the Complaint with violations of §5.4(b)(1), (2), (3) and (5) be dismissed in its entirety.

______________________________

Edmund G. Gerber

Hearing Examiner

Dated:	September 13, 1977

Trenton, New Jersey