H. E. No. 85-52 1. STATE OF NEW JERSEY
BEFORE A HEARING EXAMINER OF THE
PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the Matter of
CITY OF UNION CITY,
Respondent,
-and- Docket No. CI-84-21-117
GERTRUDE LYNCH,
Charging Party.
Appearances:
For the Respondent
Edward J. Lynch, Esq.
For Gertrude Lynch
McAlevy & Costello, Esqs.
(John D. Lynch, Esq.)
HEARING EXAMINER'S
RECOMMENDED REPORT AND DECISION
An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on September 15, 1983, and amended on September 29 and November 18, 1983, by Gertrude Lynch (hereinafter the "Charging Party" or "Lynch") alleging that the City of Union City (hereinafter the "Respondent" or the "City") 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 on January 17, 1983 Lynch submitted a grievance against the City through her union, Union City Civil Service Unit, Hudson Council No.
2 (hereinafter "Council 2"), which grievance alleged that Lynch
involuntarily worked above her job title since 1980 and should have been compensated accordingly; the Council 2 representative was Evelyn Guerra, a managerial executive of the City with an apparent conflict of interest; the City on July 6, 1983 refused to adjust Lynch's compensation upward as requested, contrary to the provisions of Section 24.2 of the current collective negotiations agreement; all of which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1), (5) and (7) 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 March 8, 1984. Pursuant to the Complaint and Notice of Hearing, hearings were held on October 2, 1984 and May l6, 1985 2/ in Newark, New Jersey, at which time the parties were given an
1/ These subsections prohibit public employers, their representatives or agents from: "(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act; (5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative; (7) Violating any of the rules and regulations established by the commission."
2/ The delay in convening the second hearing date was due to the reassignment of the case from Hearing Examiner Mark Rosenbaum to the instant Hearing Examiner, in addition to delay occasioned by an unsuccessful attempt to serve and have answered interrogatories directed to a witness in Florida.
opportunity to examine witnesses, present relevant evidence
and argue orally. Oral argument was waived and the parties filed post-hearing briefs by June 14, 1985.
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 post-hearing briefs 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 City of Union City is a public employer within the meaning of the Act, as amended, and is subject to its provisions.
2. Gertrude Lynch is a public employee within the meaning of the Act, as amended, and is subject to its provisions.
3. The City and Council 2 were parties to a collective negotiations agreement effective January 1, 1983 through December 31, 1983 (J-1), which agreement governed the terms and conditions of employment of Lynch.
4. Evelyn Guerra has since June 1982 been the City Treasurer and, at all times material hereto, has been the Secretary of Council 2.
5. The position and duties of City Treasurer are defined by statute. The City adopted an ordinance, revised in 1975, which
describes in minute detail the duties of its City Treasurer (J-9). It is readily apparent from the statute and J-9 that the City
Treasurer satisfies the definition of "managerial executive" in our Act: 34:13A-3(f). Accordingly, the Hearing Examiner finds as a fact that Guerra is a "managerial executive" within the meaning of the Act since she plainly formulates management policies and practices and directs their effectuation in the course of supervising the fiscal concerns of the City.
6. Lynch was hired by the City as a CETA employee in October 1977, and was assigned to work in the office of the Clerk of the Municipal Court. After taking a Civil Service examination she was certified as a Clerk Typist on January 2, 1980.
7. On January 17, 1983, Lynch filed a written grievance, in which she complained that the duties she was performing as a Clerk Typist, as enumerated therein, exceeded the normal duties of Clerk Typist under Civil Service (C-1, to which grievance is annexed). The grievance concluded with the allegation that under Section 24.2 of J-1 Lynch was entitled to a higher rate of compensation with back pay to January 2, 1980.
8. Section 24.2 of the collective negotiations agreement, supra , provides as follows:
The employer agrees that should an employee be assigned to perform duties other than his/her normal job classification, he/she shall be paid the higher rate of pay whether it be his own job title or that of the person for whom he is substituting for more than thirty (30) working days.
9. The job description for Clerk Typist was received in evidence as J-4.
10. By way of background to the filing of the grievance by Lynch, supra, Lynch approached Guerra in the Fall of 1982, claiming
that she had been working out of title in the Municipal Court and felt that she should have a title change and additional compensation. According to Lynch, Guerra stated that she could not be paid for working above her job title. Guerra testified that she spoke to the President of Council 2, Mary Clerici, and together they met with C. Harrison Hultman, the Director of the Department of Revenue and Finance. Hultman told Guerra and Clerici that when a promotion occurred Lynch would be in line for it. At the hearing, Hultman testified that it was not the practice of the City to pay above the Civil Service range, adding, however, that it would not be illegal. Significantly, Hultman agreed that Lynch did not receive a salary commensurate with the duties she was performing (1 Tr. 121).
11. On February 18, 1983, shortly after receiving Lynch's grievance, Guerra wrote to John Lazzarotti, the President of the Civil Service Association in Trenton, in which she summarized Lynch's grievance and the background to its filing (J-6). Lynch also wrote to Lazzarotti on February 20, 1983, explaining that she was not seeking a promotion but only additional retroactive compensation for working "well above my job title" (CP-1).
12. Council 2 held a regular meeting on March 17, 1983, where those present were advised by Frank Bassillo, the President,
that Lynch had filed a grievance, which was read at the meeting. One Rita Furniss, an officer of Council 2, stated that Lynch was not unique and that no Civil Service employee has the right to seek backpay but could only request a desk audit, which would not be retroactive. (See R-1).
13. On June 2, 1983, Clerici wrote to Hultman, referring to Lynch's grievance and a conversation with the attorney for Council 2 (CP-2). Clerici stated that while Council 2 did not wish to pursue the grievance, an adjustment should be made to bring the matter to a close.
14. On July 6, 1983, Hultman responded to Clerici's letter of June 2nd, stating that the City Commissioners had determined that there was no adjustment due (CP-3).
15. The Unfair Practice Charge was filed on September 15, 1983, alleging that the City's denial of compensation was "arbitrary, capricious and unreasonable."
DISCUSSION AND ANALYSIS
The Respondent City Violated
Subsection (a)(1) Of The Act When
It Permitted Evelyn Guerra, The
Secretary Of Council 2 And A
Managerial Executive, To Partici-
pate In The Processing Of The
Grievance Of Gertrude Lynch
Thereby Tainting The Grievance
Procedure.3/
3/ The allegation that the Respondent City violated Subsection (a)(5) of the Act cannot be sustained due to the fact that
(Footnote continued on next page)
The decision in this case is governed by Camden County etc. & Camden Council #10, H. E. No. 83-13, 8 NJPER 654 (1982), aff'd. P.E.R.C. No. 83-113, 9 NJPER 156 (1983). In that case a conflict of interest was found under the circumstances of the president of the
union being employed by the county as a Personnel Assistant, a position which was found to be that of a managerial executive under the Act. Because the union was charged and held to have violated Subsection (b)(1) of the Act, Camden County was deemed to have violated Subsection (a)(5) of the Act by the collusive handling of a grievance processed by an individual employee, in which the president of the union was involved. There, as here, the grievance of the individual employee sought a monetary remedy.
The Hearing Examiner and the Commission in Camden County, supra , relied upon precedent from the federal sector in applying the test, which defines a managerial executive as one who is so closely aligned with management and its labor policies as to place that employee in a position of potential conflict of interest between the
(Footnote continued from previous page)
Council 2 is not named as a party, which is a condition precedent to an individual employee successfully alleging a violation of Subsection (a)(5) of the Act: see Jeffrey Beale & N.J. Turnpike Authority, P.E.R.C. No. 81-64, 6 NJPER 570 (1980), aff'd App. Div. Docket No. A-1263-80T3 (198l). Also the Charging Party failed to adduce any evidence that the Respondent City violated Subsection (a)(7) of the Act. Accordingly, the Hearing Examiner will recommend dismissal of both of these allegations.
employer and its other employees: NLRB v. Bell Aerospace Co., 416 U.S. 267, 85 LRRM 2945 (1974). In Camden County the president of the union, as its Personnel Assistant, was deemed to have such a conflict of interest, and thus the County violated, inter alia , Subsection (a)(1) of the Act when it permitted the president as Personnel Assistant to serve both the County and the employee organization in the administration of the collective negotiations agreement.
As to Subsection (a)(1) of the Act and the requisites for finding an independent violation thereof, the Commission in N.J. Sports & Exposition Authority, P.E.R.C. 80-73, 5 NJPER 550 (1979) determined that proof of anti-union motive or anti-union animus is not an essential element to establishing an independent violation of
this subsection. The Commission stated that it shall be an unfair practice for an employer to engage in activities which, regardless of the absence of direct proof of animus, tend to interfere with, restrain or coerce employees in the exercise of the rights guaranteed to them by the Act absent a legitimate and substantial business justification on the part of the employer. Thus, the test is whether employer conduct tends to interfere with the exercise of employee rights.
The Commission has long recognized that the filing of a grievance by a public employee constitutes protected activity under the Act: Lakewood Board of Education, P.E.R.C. No. 79-17, 4 NJPER 459, 461 (1978) and Dover Municipal Utilities Authority, P.E.R.C.
No. 84-132, l0 NJPER 333, 338 (1984). Clearly, the right to file a grievance carries with it the right to have it processed impartially, fairly and without taint of collusion between the parties to the collective negotiations agreement. It is this lack of impartiality and fairness, resulting from the conflict of interest of Guerra, that gives rise to a violation of the Act by the City in this case. It is true, of course, that the grievance of Lynch may be lacking in merit on the bottom line. However, Lynch is owed a duty by the City to give her grievance a full and fair hearing and a responsive answer. This did not occur previously due to the intervention of Guerra, who had told Lynch that she had no grievance or claim to additional compensation as evidenced by Exhibits J-6 and CP-2, the February 18, 1983 letter from Guerra and the June 2, l983 letter from Clerici. Obviously, if Council 2 was
perfunctory in moving Lynch's grievance to Hultman, then Hultman's negative response to the grievance comes as no surprise.
The Respondent City having interfered with, coerced and restrained Lynch in the processing of her grievance for additional compensation, the Hearing Examiner will recommend that the Respondent City thereby violated Subsection (a)(1) of the Act.
* * * *
Upon the foregoing, and upon the entire record in this case, the Hearing Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent City independently violated N.J.S.A . 34:13A-5.4(a)(1) when it permitted Evelyn Guerra to serve as Secretary of Council 2 contemporaneously while acting as City Treasurer, a managerial executive position thereby tainting the processing of the grievance of Gertrude Lynch, filed January 17, 1983.
2. The Respondent City did not violate N.J.S.A . 34:l3A-5.4(a)(5) and (7) by its conduct herein.
RECOMMENDED ORDER
The Hearing Examiner recommends that the Commission ORDER;
A. That the Respondent City 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 failing fairly and impartially to process the grievance of Gertrude Lynch, filed January 17, 1983, for additional compensation and by permitting Evelyn Guerra, the City Treasurer, to participate in the grievance procedure as Secretary of Council 2.
B. That the Respondent City take the following affirmative action:
1. Forthwith preclude Evelyn Guerra from acting as City Treasurer with respect to employee grievances at the same time that she serves as Secretary or any other officer of Council 2.
2. Upon demand, process fairly and impartially, and without any conflict of interest on the part of Evelyn Guerra, the
grievance of Gertrude Lynch for additional compensation ab initio .4/
3. Post in 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 at least sixty (60) consecutive days. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by other materials.
4. Notify the Chairman of the Commission with twenty (20) days of receipt what steps the Respondent City has taken to comply herewith.
C. That the allegations that the Respondent City violated N.J.S.A . 34:13A-5.4(a)(5) and (7) be dismissed in their entirety.
Alan R. Howe
Hearing Examiner
Dated: June 25, l985
Trenton, New Jersey
4/ The Hearing Examiner has no authority to grant the relief requested by Lynch in her grievance for retroactive compensation since this is the function of an arbitrator: Ridgefield Park Ed. Ass'n. v. Ridgefield Park Bd. of Ed., 78 N.P . 144, 155 (1978) ***** End of HE 85-52 ***** |