It appearing that the allegations, if true, may constitute an unfair practice within the meaning of the Public Employment Relations Act (Act), the Director of Unfair Practices issued a Complaint and Notice of Hearing on December 15, 1978.

It came to the attention of the Commission that a separate action was pending before the Civil Service Commission concerning Gattoni = s discharge. After consultation with the Civil Service Commission it was determined that the parties had already completed one day of hearing before a Civil Service Hearing Officer. ^2/ Accordingly, the instant action was deferred pursuant to the Supreme Court = s directive in Hinfy v. Matawan Board of Education, 77 N.J. 1514 (1978).

On April 18, after the Civil Service hearing was closed, Richard Greenstein, the attorney who represented Gattoni before the Civil Service Commission, consulted with the undersigned. Greenstein said the issue of Gattoni = s union activities was never raised before Civil Service. On July 26, 1979, the Civil Service Hearing Officer issued a decision recommending that the action of the Department of Human Services be modified from removal to a 60-day suspension. The decision did not make any finding as to Gattoni = s activities on behalf of the union; nor were findings of fact made as to Gattoni = s relationship with Small and Spector, the two supervisors who Gattoni alleged were motivated by anti- union animus. Upon review, the Civil Service Commission adopted their Hearing Officer = s findings of fact but reinstated the discharge.

The undersigned made the determination that there were issues which were not resolved by the Civil Service Commission and the matter was brought for hearing in Newark, New Jersey, on September 10, 11, 12, 14 and November 14, 1979. At the hearing, all parties were given an opportunity to examine witnesses, present relevant evidence and argue orally and present briefs. Two separate briefs were filed by the Respondent and were received by March 7, 1980.

The State argued in their brief that the Supreme Court = s decision in City of Hackensack v. Winner, 82 N.J . 1 (1980), should be interpreted to mean that Civil Service has primary jurisdiction over matters of employee discipline and therefore the instant complaint should be dismissed. While the undersigned completely rejects this interpretation of Hackesack , nevertheless, in this particular case, after making certain preliminary findings of fact (discussed below), the undersigned must agree that the instant complaint should be dismissed in order for the Commission to act in compliance with the Supreme Court = s mandate in Hackensack.

In Hackensack there were duplicate filings before the same two agencies as are involved in the instant matter. Civil Service and PERC conducted separate, independent hearings but came to opposite conclusions.

The Supreme Court laid down principles that should have been invoked to both resolve the controversy between the parties and avoid the collision between the two tribunals. The court stated in part:

A A further consideration for PERC was whether the common issue was clearly severable from the balance of the controversy and would thus have permitted non-duplicative factual and legal determinations....The single controversy doctrine constituted a further key consideration, i.e ., whether the common issue could have been fairly, competently and fully tried an adjudicated together with, and as a constituent part of, all other issues in the case before one agency so that fragmented and repetitious actions would be avoided, all relevant concerns addressed and the entire controversy concluded in a single procedure. @ At pp. 39-40.

It was also clear that she and her supervisor, Betty Small, had a strong personality conflict and this conflict spilled over into the areas of protected rights. Gattoni was involuntarily transferred to an office in another county and Gattoni successfully appealed the transfer and was reinstated. During Gattoni = s appeal of the transfer, Small asked two employees to write to Jed Spector, their Bureau Chief, in support of her position. They wrote the following letter:

A Since coming to the Passaic County CMAV we have felt and observed a great deal of tension because of the grievances being filed by Mrs. Gattoni.

A We feel that if Mrs. Gattoni returned to the Passaic County office, it would cause the tension to continue and increase and interfere with the smooth and efficient functioning of the staff nurses. @

Neither of the two employees who wrote this letter had at that time even met Gattoni.

Moreover, at the Civil Service hearing the State, through its Deputy Attorney General, attempted to introduce all of the grievances that Gattoni had filed during her employment with the State in support of the State = s action in discharging Gattoni. The Deputy Attorney General argued, A part of Gattoni = s past record and her past performance can be reflected by the number of times that there had been disagreements between the appellant and her supervisor culminating [in] grievances. In fact, she may be entitled to file many more grievances than she = s had, but it = s a part of our position that the appellant has filed many grievances dating back from 1972 and we are not even particularly concerned with the nature of the grievances as much as the amount of grievances that have been filed, the time that this causes, the concern and the disruption on morale, the staff time. @ ^3/

The Hearing Officer refused to allow such evidence in the record noting that A an employee may be entitled to file grievance after grievance. @ ^4/ In his report there were no findings of fact which related to either Gattoni = s general conduct as an employee or as a shop steward.

Rather the findings of fact were limited to the specific charges brought against Gattoni: Falsification of time records and conduct unbecoming a State employee. As to the latter charge, it was found that Gattoni was involved in an altercation at the Newark Motor Pool. Gattoni waited over an hour for a car that she had reserved the day before. While waiting she had discussions with the Motor Pool Dispatcher and made two telephone calls to her supervisor about the delay. When Gattoni finally received a car it was dirty and contained a quantity of garbage. Gattoni took the garbage from the car and tossed it through a window onto the dispatcher = s desk. Some of the garbage struck the dispatcher.

As to the charge of falsification of time records, the Hearing Officer found that on February 27, 1980, Gattoni was in an automobile accident on her way to a field assignment. Gattoni arrived at her job site at 11 a.m. However, she marked her time sheet to indicate that she arrived at her work site at 8:30 a.m. On the same date Gattoni left her work prior to 4 p.m. although she indicated on her time sheet that she left work at 4:30 p.m.

On March 1, 1978, Gattoni left work at 2 p.m. but signed out on her time sheet at 4:30 p.m. She did not call for authorization to leave early on either February 27 or March 1 although she did call the office to notify her supervisor on the morning of the 27 ^th that she was in an accident.

At the hearing before the undersigned Gattoni did not dispute that any of these three incidents occurred, rather she attempted to offer explanations as to her conduct. Gattoni offered substantially the same testimony in the hearing before Civil Service. The complaint against her as to the incident in the motor pool came from the motor pool personnel, not Small and the uncontested and, as to this incident, credible testimony of Small was that she was alerted to Gattoni leaving work early quite by accident.

The Civil Service Commission adopted and accepted the findings of fact of its Hearing Officer but rules that:

A [T]he [Civil Service] Commission does not find circumstances which warrant a reduction in penalty. The appointing authority had rules that clearly indicated that an employee could be subject to removal for certain offenses. Appellant twice committed one of those offenses by falsifying her time sheet. The appointing authority was thus justified in removing appellant on those grounds.

A As for the incident in which appellant littered a dispatcher = s desk with refuse, the Commission need not dwell upon whether or not such conduct was > notoriously disgraceful. = It is merely sufficient to recognize the seriousness of appellant = s act. The dispatcher could easily have been injured by the empty can which appellant threw on his desk. Furthermore, he was needlessly made to suffer an indignity. Such conduct on the part of appellant was unjustified and inexcusable. The Commission therefore finds that appellant = s removal was merited. @

Since the Civil Service Commission has found that Gattoni committed the acts of which she was accused and, in upholding her discharge, did not find her proffered excuses grounds to mitigate against the discharge, the undersigned recommends that the Public Employment Relations Commission defer from making any independent ruling. The propriety of the discharge has been litigated before Civil Service and to independently rule at this time would constitute a duplicative determination.

Accordingly, in accordance with the Supreme Court = s directive in Hackensack, supra , it is hereby recommended that the Complaint in this matter be dismissed in its entirety.

___________________________

Edmund G. Gerber
Hearing Examiner

DATE: June 17, 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; (3)discriminating in regard to hire or tenure of employment of 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/ November 13, 1978.

3/ Transcript of Civil Service hearing of November 13, 1978, pp. 11-13.

4/ Transcript of Civil Service hearing of November 13, 1978, p. 13.