Decisions

H.E. No. 80-28

Synopsis:

A Hearing Examiner recommends that the Public Employment Relations Commission find that the Township violated Subsection 5.4(a)(1) and (3) of the New Jersey Employer-Employee Relations Act when it failed to promote Raymond Xifo to the postion of Sergeant in the Police Department on or about September 17, 1979. The Hearing Examiner found that Xifo had for many years been an officer of and active as a negotiator for the P.B.A. in the Township and that he had been vigorous and "up front" as a negotiator. Further, the Hearing Examiner found that Xifo had been passed over twice previously for promotion and that, notwithstanding that he was seven and one-half points ahead of his nearest rival on the Civil Service list in 1979, he was again passed over for promotion. It was also found by the Hearing Examiner that Xifo had performed competently as Acting Sergeant for a six-month period from January to June 1979, and that his productivity rating was twice better than that of the Patrolman who was promoted to Sergeant instead of Xifo.

The Hearing Examiner concluded that the Township's action of failing to promote Xifo was a result of anti-union animus manifested toward Xifo because of union activities on behalf of the P.B.A. and, further, was "inherently destructive" of Xifo's and other's rights protected by the Act, citing as precedent the Commission's decision in City of Hackensack, P.E.R.C. No. 77-49, 3 NJPER 143 (1977), rev'd. on other grounds, 162 N.J. Super. 1 (App. Div. 1978), pet. certif. granted 78 N.J. 404 (1978). By way of remedy, the Hearing Examiner ordered the Township forthwith to promote Xifo to the position of Sergeant in the Police Department with back pay representing the difference between his pay as Patrolman and that which he would have received as Sergeant since September 17, 1979.

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. 80-28, 6 NJPER 69 (ś11036 1980)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

72.324 72.338 72.366 72.352 72.311 72.319

Issues:

Decisions WordPerfect PDF

NJ PERC: . - HE 80-028.pdf

Appellate Division:

Supreme Court:

H.E. NO. 80-28 1.
H.E. NO. 80-28

STATE OF NEW JERSEY
BEFORE A HEARING EXAMINER OF THE
PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

TOWNSHIP OF CLARK,

Respondent,

-and- Docket No. CI-80-2-10

RAYMOND XIFO,

Charging Party.

Appearances:

For the Township of Clark,
Pisano & Triarsi, Esqs.
(John S. Triarsi, Esq. )

For Raymond Xifo,
Nichols & Blackman, Esqs.
(Robert B. Blackman, 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 July 23, 1979, and amended on December 3, 1979, by Raymond Xifo (hereinafter the A Charging party @ or A Xifo @ ) alleging that the Township of Clark (hereinafter the A Respondent @ or the A Township @ ) 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 on July 3, 1979 and again on September 17, 1979 passed over Xifo, a Patrolman, and promoted to Sergeant another Patrolman, who was second on the Civil Service list, notwithstanding the fact that Xifo had served as an Acting Sergeant for a considerable period of time, the foregoing action of the Respondent allegedly being based on Xifo = s activities on behalf of the P.B.A. for 15 consecutive years, all of which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1) and (3) 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 August 16, 1979. Pursuant to the Complaint and Notice of Hearing, hearings were held on December 12 and 13, 1979 and January 7, 1980²^/ in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Both parties argued orally and waived the filing of post-hearing briefs.
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 oral argument of the parties, 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 Township of Clark is a public employer within the meaning of the Act, as amended, and is subject to its provisions.
2. Raymond Xifo is a public employee within the meaning of the Act, as amended, and is subject to its provisions.
3. Xifo was hired by the Township as a Patrolman in April 1964 and has served continuously in that position since that date. The testimony establishes beyond doubt that during this period Xifo was a A good cop. @ Commencing with this first year of employment Xifo has held the following positions seriatim with the P.B.A. local representing the Patrolmen and Sergeants employed by the Township: Sergeant-at-Arms; Treasurer; Secretary; Financial Secretary; and for four years was President. Xifo was Vice-President from 1972 to 1978. He has either been on the Negotiating Committee or its Chairman for all of the years of his employment except for three years (1973-75). ³^/
4. After being passed over for promotion to Sergeant in 1969, Xifo was next considered for promotion in 1973 when he ranked No. 1 on the Civil Service Eligibility List (CP-2). Xifo was again passed over for the second person on the List, namely, Anton W. Danco, whom the appointing authority, the Director of Public Safety, Robert J. Jenney, felt was A more dedicated. @
5. In order to improve morale in Respondent = s Police Department the Chief and the Captain, John Waterson, instituted in November 1978 a monthly Productivity Log for each Patrolman, which indicates the total points gained for job performance for a given month. A copy of this Productivity Log, covering the period November 1978 through September 1979, was received in evidence as Exhibit CP-4. An examination of CP-4 indicates that Xifo scored a total of 1427 points from November 1978 through September 1979, thus placing Xifo substantially ahead of all other Patrolmen in the Police Department except for one Donald Caridad, who scored 1825 points.
6. Several months prior to January 1979 Xifo was advised that beginning in January he would become Acting Sergeant or Platoon leader for Platoon A B @ . Xifo assumed this position in January and continued to hold it for six months through June 1979. A further examination of CP-4, supra, discloses that the performance of the Patrolmen in Platoon A B @ under Xifo, during this six-month period, exceeded the performance of the other three Platoons, there being a total of four Platoons in the Police Department. Mr. Jenney, Chief Smar and Captain Waterson all acknowledged that Xifo performed competently and well as Acting Sergeant during the foregoing six-month period. This was also the opinion of Patrolman Timothy George, who was in Xifo = s Platoon during this period.
7. Xifo testified credibly that immediately prior to the institution of the Productivity Log (CP-4) all the Patrolmen in the Police Department attended a meeting with the Chief and Captain where the patrolmen were told that job performance under the Productivity Log system would be a factor in future promotions.
8. Charging Party witness Thomas P. Winters, a former Councilman and a present member of Respondent = s Zoning Board, testified credibly, both on direct and cross-examination, that he casually engaged Chief Smar in a conversation on January 1979 with respect to Xifo. At one point Mr. Winters testified that the Chief responded substantially as follows regarding Xifo and the P.B.A.:
A ...Well, he = s a good cop and he does his job properly...but, if Raymond would only learn to slow down a little bit and react a little differently when he = s approached on the Bargaining Committee and fighting on behalf of the P.B.A., and so forth, > If he = d only learn to turn the cheek a little bit, why it would probably resolve some of his problems. = ... @ (2 Tr. 56).

9. In contemplation of the need for a new promotion to the position of Sergeant in 1979 a current Civil Service list (CP-1) was obtained by the Township. Xifo was No. 1 on the list with a score of 89.296 and Albert Williams, Jr. was No. 2 with a score of 81.906. Following an interview of Xifo and Williams in June 1979⁴^/ William was promoted to Sergeant on July 3, 1979.⁵^/ The Hearing Examiner notes that an examination of the Productivity Log (CP-4) discloses that as of the end of June 1979 Xifo had scored 1138 point compared to 593 points scored by Williams.
10. The Hearing Examiner does not credit the testimony of Mr. Jenney, repeated by Chief Smar and Captain Waterson, that the principal reason that Xifo was not promoted to Sergeant was because Xifo = s actions as a Patrolman were frequently A irrational, rash and over-reactive. @ ⁶^/
11. During Xifo = s period of employment as Patrolman he has been disciplined on three occasions while Williams has been disciplined only once. ⁷^/

THE ISSUES
1. Did the Respondent Township violate the Act when it failed to promote Raymond Xifo to the position of Sergeant in the Police Department on July 3, 1979 and again on September 17, 1979? If so, what shall the remedy be?
2. Can the award to attorneys fees, as requested by the Charging Party, be sustained under the law of New Jersey?
DISCUSSION AND ANALYSIS
The Respondent Township Violated Subsection (a)(3)
Of The Act, And Derivatively Subsection (a)(1),
When On July 3, 1979 And Again on September 17,
1979 It Failed To Promote Raymond Xifo To The
Position of Sergeant In the Police Department

The Commission has previously considered a promotion case where the Charging Parties were union activists and were passed over: City of Hackensack, P.E.R.C. No. 77-49, 3 NJPER 143 (1977), rev = d. on other grounds, 162 N.J. Super 1 (App. Div. 1978), pet. certif. granted, 78 N.J. 404 (1978). The Commission there sustained the conclusion of the Hearing Examiner that Subsections (a)(1) and (3) of the Act were violated. In restating the standard for a Subsection (a)(3) violation⁸^/ the Commission said:
A Under the Haddonfield decision, a Section 5.4(a)(3) violation may be found if the Charging Party can prove either that anti- union animus was one of the motivating factors for the discriminatory conduct or that the effect of the employer = s action was > inherently destructive = of rights guaranteed to employees by the Act... @ (Emphasis supplied) (3 NJPER at 144).

In City of Hackensack the Charging Parties were officers and negotiators of long standing in their union and were passed over for promotion. The Hearing Examiner found and concluded that the employer violated Subsection (a)(3) of the Act both by having manifested anti-union animus and, without regard to such animus, an effect of the employer = s action was A inherently destructive @ of employee rights under the Act. ⁹^/ The Commission affirmed the Hearing Examiner on both points. The Hearing Examiner, in the case sub judice, notes that the Commission, in finding that the conduct of the City of Hackensack was A inherently destructive @ of employee rights under the Act, observed of the Charging Parties therein:
A ...They were clearly the leaders of the union activities within the Hackensack Fire Department, being highly visible and vocal...and negotiating with management...Against this backdrop, the fact of their having been singled out to be skipped cannot help but having a chilling effect on other employees desirous of engaging in union activities. @ (3 NJPER at 145).

Turning now to the Township = s failure to promote Xifo to Sergeant in the instant case, the Hearing Examiner finds and concludes that the Township = s conduct with respect to Xifo violated Subsection (a)(3) of the Act, both by having manifested anti-union animus toward Xifo and by being A inherently destructive @ of rights guaranteed to Xifo and other employees by the Act. Further, by its conduct the Township derivatively violated Subsection (a)(1) of the Act.¹⁰^/ In support of this finding and conclusion the Hearing relies on the following:
1. Xifo has held office in the P.B.A. from the first year of his hire in 1964 through 1978. He has been on the negotiating team, either as a member or chief negotiator, for all of his years of employment except for three years (1973-75). His conduct as a negotiator on behalf of the P.B.A. has always been vigorous and, as Chief Smar acknowledged, he was A always up front. @ Further indication of the nature of Xifo = s conduct as a negotiator appears in Chief Smar = s conversation with Mr. Winters in January 1979 where the Chief said of Xifo that while he was a A good cop and he does his job properly @ he would fare better in his negotiation with the Council A If he = d only learn to turn the cheek a little bit... it would probably resolve some of his problems. @ (See Findings of Fact Nos. 3 and 8 supra).
2. It is undisputed that Xifo was not only a A good @ Patrolman but that the Township in the latter part of 1978 advised Xifo that he was to become Acting Sergeant of Platoon A B @ in January 1979, which position he held for six months through June 1979. Further, it is undisputed, based on the A Productivity Log (CP-4), that the points logged by Xifo from November 1978 through September 1979 were exceeded by only one other Patrolman. During the first six months of 1979, when Xifo was Acting Sergeant for Platoon A B @ , the Productivity Log discloses that the Patrolmen in Platoon B performed better than the Patrolmen in the other three Platoons. It was acknowledged by Mr. Jenney, Chief Smar and Captain Waterson that Xifo performed competently as Acting Sergeant during these six months. Additionally, comparing Xifo = s and Williams = performance on the Productivity Log, Xifo accumulated 1138 points from November 1978 through June 1979 while Williams accumulated only 593 points. (See Findings of Fact Nos. 3,6,9, supra).
3. The Civil Service lists indicate that in 1973, when Danco was promoted to Sergeant over Xifo, there was a one-point difference between Xifo, who was No. 1, and Danco while in 1979 there was a seven and one-half point difference between Xifo and Williams with Xifo ranked No. 1 (CP-1 and CP-2). The recommendation of the Lieutenants and Sergeants in the Police Department, which were solicited by Captain Waterson in May 1979 (R-6), indicate that three recommended Xifo, three recommended Williams and one felt that both were equally qualified (footnote 5, supra). It is noted that the retired Lieutenant, who was third in command before his retirement in March 1979, recommended Xifo (CP-5).
4. With respect to the disciplinary records of Xifo and Williams, although Xifo had three disciplinary actions while Williams only had one, no basis for comparison in length of service appears on the record since Williams = date of hire was not introduced in evidence. It is noted that Xifo = s most recent substantial disciplinary action occurred in 1972 ( R-2), the same year of Williams = single infraction ( R-4). The Hearing Examiner attaches no significant weight to the A Rahway @ and A Jack = s Tavern @ incidents since no disciplinary action was instituted against Xifo for excessive use of force.
5. The Hearing Examiner has refused to credit Mr. Jenney, who was confirmed by Chief Smar and Captain Waterson, that the reason for Xifo = s being passed over for promotion to Sergeant was because of his tendency to act irrationally, rashly and over-reactively. Competent evidence was offered to rebut this by the Charging Party (footnote 6, supra).
Based on the foregoing, the Hearing Examiner is of the firm opinion that the Township = s stated reasons for failing to promote Xifo to the position of Sergeant are pretextual and after-the- fact. It is true the Xifo adduced no direct evidence of a management official of the Township indicating expressly that Xifo = s activities on behalf of the P.B.A. were the true reason for his not having been promoted to Sergeant. However, the inferences to be drawn from the foregoing recital of facts, based upon the record, are so strong as to leave not doubt that Xifo = s union activities were the primary reason, if not the sole reason, for his not being promoted to Sergeant in 1979.
In so holding, the Hearing Examiner attaches great significance to the fact that Xifo scored seven and one-half points above Williams in the Civil Service test for 1979 and that Xifo performed competently for six months in 1979 as Acting Sergeant. Further, Xifo accumulated almost double the points of Williams on the Productivity Log during the period from November 1978 to June 1979. It is noted that Xifo and the other Patrolmen were told by the Chief that the Productivity Log would be a factor in future promotions.
The real reason for the failure to promote Xifo to Sergeant in 1979 having been because of his especially vigorous activities as a negotiator for the P.B.A. over many years, the Hearing Examiner concludes that the Township has thus manifested anti- unio animus toward Xifo. Further, without regard to the existence of anti-union animus, the Township = s refusal to promote Xifo was A inherently destructive @ of Xifo = s and other employees = rights under the Act to engage in protected activities. The Township = s conduct toward Xifo was plainly intended to make it clear to other Patrolmen that vigorous activity on behalf of the P.B.A. might well result in their not being advanced on the promotional ladder.
Therefore, based on all of the foregoing, the Respondent Township violated Subsections (a)(1) and (3) of the Act when it failed to promote Xifo to the position of Sergeant, first on July 3, 1979, and again, after a new Ordinance was adopted, on September 17, 1979.
There Exists No Basis Under The Law Of
New Jersey For The Award Of Attorneys
Fees In This Case

The Charging Party has requested the award of attorneys fees, citing Section 5.4(c) of the Act, which authorizes the Commission A ...to take such reasonable affirmative action as will effectuate the polices of this Act... @ The Charging Party urges that the Hearing Examiner thus has the authority to award attorneys fees, without siting Commission precedent or a New Jersey court decision in support of this position.
The Commission has in one decision refused to award attorneys fees rejecting the recommendation of a Hearing Examiner that attorneys fees be awarded: Borough of Avon, P.E.R.C. No. 78-21, 3 NJPER 373 (1977).¹¹^/ The Avon case involved a discharge in violation of the Act where back pay was awarded. The Hearing Examiner, citing several New Jersey Supreme Court decisions, had awarded counsel fees to the extent of any interim earnings of the Charging Party during the period from the date of discharge to the date of reinstatement.
The Hearing Examiner in the instant case is confronted with the situation of no discharge and, therefore, no interim earnings against which attorneys fees could be offset. In the absence of any other authority or precedent in New Jersey, the Hearing Examiner herein can find no basis for the award of attorneys fees to the Charging Party herein.
* * * *
Upon the foregoing and upon the entire record in this case, the Hearing Examiner makes the following:
CONCLUSIONS OF LAW
The Respondent Township violated N.J.S.A. 34:13A-5.4(a)(3), and derivatively 5.4(a)(1), when on July 3, 1979, and again on September 17, 1979, it failed to promote Raymond Xifo to the position of Sergeant in the Respondent Police Department.
RECOMMENDED ORDER
The Hearing Examiner recommends that the Commission ORDER:
A. That the Respondent Township 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 promote employees, such as Raymond Xifo, because of the exercise of such rights.
2. Discriminating in regard to hire and 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 promote Raymond Xifo to the position of Sergeant in the Police Department.
b. That the Respondent Township take the following affirmative action:
1. Forthwith promote Raymond Xifo to the position of Sergeant in the Police Department, without prejudice to any rights or privileges that he may have enjoyed since September 17, 1979, with back pay from that date, calculated upon the difference between his present pay as Patrolman and the rate of pay he would have received as Sergeant if he had been promoted on September 17, 1979.¹²^/
2. 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, after being signed by the Respondent = s authorized representative, and 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 insure that such notices are not altered, defaced or covered by other material.
3. Notify the Chairman of the Commission within twenty (20) days of receipt what steps the Respondent has taken to comply herewith.

__________________________
Alan R. Howe
Hearing Examiner

DATED: January 11, 1980
Trenton, New Jersey

1/ These Subsections prohibit employers, their representatives or agents from: A (1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed them by this Act. (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. @
2/ The delay in the scheduling of hearings occurred because of the necessity of the Charging party filing an amended charge, which amendment was not filed until December 3, 1979.
3/ It was conceded by all who testified regarding Xifo = s conduct as a negotiator that he was outspoken and vigorous, and that he was, as acknowledged by the Chief of Police, Anthony T. Smar, A always up front. @
4/ In attendance were the Mayor, Bernard G. Yarusavage; Mr. Jenney; Chief Smar and Captain Waterson.
5/ Due to a deficiency in the Ordinance authorizing the 1979 vacancy for Sergeant, Williams did not assume the position of Sergeant on July 3, 1979. Subsequently, another Ordinance was adopted and Williams was again promoted and assumed the position of Sergeant as of September 17, 1979. With respect to the promotion process, Chief Smar testified that he recommended Williams over Xifo based upon four factors: sick time: temperament; personality and how each man A handled things. @ Captain Waterson also recommended Williams. In May 1979 Captain Waterson requested and received from the three Lieutenants and four of the Sergeants in the police Department an evaluation of Xifo and Williams A as leaders @ with a recommendation (R-6). Lt. Harry Matthews recommended both Williams and Xifo equally; Det. Sgt. Robert Hartong, Sr. recommended Xifo; Sgt. A. Wesley recommended Xifo; Sgt. Anton Danco equivocally recommended Williams; Sgt. Alfred Yersevich recommended Williams, Lt. Frank Halloran recommended Williams; and Lt. Fred Asal recommended Xifo. A retired Lieutenant, Robert Bartkus, whose recommendation was not solicited would have recommended Xifo (CP-5). It is noted that although the foregoing recommendations (R-6) were utilized by Chief Smar and Captain Waterson, Mr. Jenney did not learn of these recommendations until after he appointed Williams as Sergeant on July 3, 1979.
6/ Charging Party witnesses Lt. Fred Asal, Det. Sgt. Robert Hartong, Sr., and Patrolman Donald Caridad testified that they never observed Xifo acting irrationally.
7/ Xifo lost three paid holidays for a sleeping incident in 1964 (R-1); he lost five vacation days for conduct unbecoming an officer and neglect of duty in 1972 (R-2); and he received an official reprimand for writing a notation on an envelope containing material for delivery to a Councilman in 1977 (R-3). Williams lost five vacation days for violating the hair style standard in 1972 (R-4). Although there was considerable testimony regarding Xifo = s use of excessive force in an incident in Rahway in 1976 and at Jack = s Tavern in Clark in 1975, it is noted that Xifo was not disciplined on either occasion.
8/ The Commission = s first decision on the Subsection (a)(3) standard was set forth in Haddonfield Borough Board of Education, P.E.R.C. No. 77-31, 3 NJPER 71, 72 (1977)
9/ See 2 NJPER 232, 241, 243 (1976).
10/ See Galloway Township Board of Education, P.E.R.C. No. 77-3, 2 NJPER 254, 255 (1976).
11/ See H.E. No. 77-21, dated June 24, 1977, which is not reported in NJPER.
12/ Consistent with City of Elizabeth, P.E.R.C. No. 79-93, 5 NJPER 231 (1979), the Hearing Examiner makes no recommendation as to what action the Township must take with respect to creating a vacancy in the position of Sergeant in order that Xifo may be promoted in accordance with the Recommended Order.

***** End of HE 80-28 *****