H.E. NO. 2003-2
STATE OF NEW JERSEY
BEFORE A HEARING EXAMINER OF THE
PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the Matter of
RUTGERS, THE STATE UNIVERSITY,
Respondent,
-and- Docket No. CO-H-98-193
C.W.A., LOCAL 1031,
Charging Party.
Appearances:
For the Respondent, Office of University Counsel
(John B. Wolf, of counsel)
For the Charging Party, Weissman & Mintz, attorneys
(Mark A. Rosenbaum, of counsel)
HEARING EXAMINER'S REPORT
AND RECOMMENDED DECISION
On December 1 and 31, 1997 and February 25, 1999, the Communications Workers of America, Local 1031 (CWA or Charging Party) filed a charge and amended charges (C-1 and C-3) 1/ against Rutgers, the State University (Rutgers or University), alleging violations of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq . (Act), specifically 5.4a(1), (2) and
1/ Record references are as follows: CCommission exhibits; CPCharging Party's exhibits, RRespondent's exhibits; and Jjoint exhibits.
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(3).2/ The original charge alleged that Rutgers engaged in a pattern of conduct which interfered with the formation and existence of the Administrative Organizing Committee of CWA (AOC) and discriminated against three individual members of the AOC, Maureen D'Arcy, Jane Chepitch and Scott Randolph because of their organizing efforts between 1995 and 1996. 3/ CWA contends Rutgers discriminated against these individuals by removing significant responsibilities from D'Arcy, eliminating Randolph's and Chepitch's positions and laying them off and not considering Chepitch for other vacancies. 4/
The first amended charge alleges that on or about July 1, 1997, Rutgers retaliated against Beverly Tarter for her efforts on behalf of the CWA 1995/1996 organizing campaign by reducing her work hours and salary. The second amended charge alleges that Rutgers continued its retaliatory conduct against Tarter and Randolph by failing to interview them for the position of law school admissions director at Rutgers/Newark. CWA contends both applied and were qualified for the
2/ These provisions 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; (2) Dominating or interfering with the formation, existence or administration of any employee organization, and (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."
3/ In November 1997, Chepitch (Docket No. CI-98-27), Randolph (Docket No. CI-98-36) and D'Arcy (Docket No. CI-98-37) also filed individual charges against Rutgers alleging retaliation for their exercise of protected rights based on their individual 1995/1996 CWA organizing efforts. These individual charges were subsequently withdrawn. CWA's charge and amended charge under CO-98-193 included those allegations. In consideration of the withdrawals, Rutgers' agreed to waive timeliness defenses to the Randolph claims and stipulated to same on the first day of hearing (1T16).
4/ Both Randolph and Chepitch decided to voluntarily retire.
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position.
On October 22, 1998, a Complaint and Notice of Hearing issued on the original charge and first amended charge and the matter was assigned to Hearing Examiner Jonathon Roth. On November 10, 1998, Hearing Examiner Roth recused himself and on November 18, 1998, the matter was reassigned to me. On March 2, 1999, the Complaint was amended to include the second amended charge (C-4) regarding Tarter and Randolph's application for the law school director position. N.J.A.C.19:14-2.2.
The hearing began in March 1999, but on November 8, 1999, the tenth day of hearing, CWA again moved to amend the complaint seeking to add allegations that Tarter, Chepitch and Randolph unsuccessfully applied for positions at the University between June 1998 and July 1999 for which they were qualified but did not receive appointments because of their union activities. I denied the motion for reasons of administrative efficiency and because it was unduly prejudicial to Rutgers to amend the pleadings so far into the hearing. 5/
On November 20, 1998 and March 5, 1999, Rutgers filed Answers (C-2 and C-5) generally denying the allegations that it discriminated against D'Arcy, Chepitch, Randolph and Tarter and asserting separate legitimate business justifications for its various personnel actions.
5/ On March 2, 1999, before the hearing started, Charging Party's February 25, 1999 request to amend the complaint adding allegations about one law school position for which Tarter and Randolph applied in October 1998 was granted. At the time of the March 2nd amendment, Charging Party knew or should have known about Tarter's, Randolph's and Chepitch's other job applications in 1998, and should have added these allegations to its February 25 amendment request giving Respondent ample time to interview and prepare its witnesses before the commencement of the hearing.
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As to D'Arcy, Rutgers asserts that as the result of a reorganization at the Rutgers/Camden campus, certain of D'Arcy's responsibilities were reassigned and reassignment of these responsibilities had no adverse impact on her.
As to Randolph, Rutgers contends his position was eliminated due to a larger reorganization within the office of university undergraduate admissions. Rutgers denies that its failure to interview him for the law school admissions director position was in retaliation for his activities during the CWA organization drive.
As to Chepitch, Rutgers contends that the elimination of her business manager position was also the result of a larger reorganization.
As to Tarter, Rutgers contends that a reduction in her work hours was the result of budget cuts which impacted many areas of the University. It denies that its failure to interview her for the law school admissions director position was in retaliation for protected activities.
Additionally, Rutgers raises three affirmative defenses: the complaint fails to state a claim upon which relief can be granted; its actions were legitimate and based on non-retaliatory reasons; and as to Tarter, the complaint is untimely.
Hearings were conducted on March 8, April 7 and 8, May 3, 18 and 19, July 28 and 29, September 29 and November 8, 1999 and January 14, February 22, March 9 and 15, May 25 and 31, June 13, July 14, August 10 and 17 and November 20, 2000. 6/ Post-hearing briefs, together with proposed findings of fact, were filed by April 2, 2001, and reply briefs were submitted by May 1,
6/ Transcript references shall be 1Tto 21Trespectively.
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2001. Based upon the entire record, I make the following:
FINDINGS OF FACT
* * * See Slip Opinion for Findings of Fact * * *
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ANALYSIS The issue in this matter is whether Rutgers retaliated against Maureen D'Arcy, Beverly Tarter, Scott Randolph and/or Jane Chepitch for organizing on behalf of CWA. In re Bridgewater Tp., 95 N.J . 235 (1994), sets forth the standards for determining whether personnel actions were motivated by discrimination against the exercise of protected activities in violation of subsections 5.4a(1) and (3). A charging party must prove, by a preponderance of evidence on the entire record, that protected conduct was a substantial and motivating factor in the adverse personnel action. This may be done by direct or circumstantial evidence showing that the employee engaged in protected activity, the employer knew of this activity, and the employer was hostile towards the exercise of protected rights. Id. at 246.
If the employer does not present any evidence of a motive not illegal under the Act or if its explanation has been rejected as pretextual, there is sufficient basis for finding a violation without further analysis. Sometimes, however, the record demonstrates that both unlawful motives under the Act and other motives contributed to a personnel action. In these dual motive cases, the employer has not violated the Act if it can prove, by a preponderance of the evidence on the entire record, that the
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adverse action would have taken place absent the protected conduct. Id . at 242. This affirmative defense, however, need not be considered unless the charging party has proven, on the record as a whole, that union animus was a motivating or substantial reason for the personnel action.
The CWA has not demonstrated, by a preponderance of the evidence, that the removal of D'Arcy's custodial/maintenance supervisory responsibilities, the reduction in Tarter's position from twelve months to ten months, the layoffs of Randolph and Chepitch or their failure to secure other University positions were due to participation in the CWA campaigns. The CWA established, and Respondent agrees, that the individuals engaged in protected activity. However, CWA failed to demonstrate that every decision-maker for each personnel action was aware of the employees' protected activities. Moreover, the CWA did not establish that Rutgers, generally, or the decisionmakers, specifically, were hostile to the exercise of the protected activity, but even if it had, Rutgers presented legitimate, non-pretextual reasons for its actions. In other words, the CWA failed to establish on the record as a whole, that union animus was a motivating or substantial reason for the personnel actions.
The "Vote No" Campaign
Throughout the summer and fall of 1995, the CWA conducted a union organizing drive seeking to represent the APS staff at Rutgers. Although a representation petition was not filed until June 12, 1995, there were ongoing discussions among APS employees during the spring regarding the possibility of unionization. The CWA had an open informational meeting at Rutgers in May 1995. Its newsletter was distributed beginning in May 1995 to APS employees and others. The Administrative Assembly became a forum for such discussions because Assembly leaders, including D'Arcy, Tarter and
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Chepitch and others became involved early-on in the CWA organizing effort.
Vice-President Richard Norman spearheaded the University's response to the CWA campaign. He was assisted by Otzenberger, an assistant of Norman's Bob Kelsey, Mowry and Waldman. Norman's mission, delegated to him by President Lawrence, was to persuade eligible APS employees to "Vote No" to unionization.
In carrying out his mission, Norman hired outside consultants to advise him and Rutgers' managers about the "dos" and "don'ts" of a union campaign. Norman and one or two consultants met once with a larger group of about 75 managers to advise them of proper campaign conduct and once or twice on various campuses with smaller groups to discuss permissible conduct during the campaign.
Charging Party asserts that the hiring of the consultants constituted direct evidence of union animus. It characterizes the one or two meetings between the consultants and various management employees as training sessions designed to give top University managers the green light to engage in anti-union activities against the leadership of the organizing effort. Charging Party further asserts that I need not conclude decision-makers or supervisors received instructions from Norman or others in central administration to take specific acts, because the University's vigorous "Vote No" campaign sent clear signals to managers to take action against union leaders.
Respondent disagrees with Charging Party's characterization of its efforts to persuade APS employees to "Vote No." It asserts Rutgers' response to the CWA campaign was respectful and low key. Moreover, Rutgers contends it was within its rights as a public employer to express an opinion about unionization so long as its statements were non-coercive; it had a right to run a "Vote No" campaign. It further asserts the hiring of consultants to provide expertise was a prudent act. The
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alternative was to leave managers in the dark and to their own devices. Additionally, it disagrees that the University's campaign sent clear signals to top managers to take action against union supporters. In support of this contention, it offered evidence of treatment afforded similarly situated APS employees (union supporters who played public and prominent roles in the 1995 campaign) which, it asserts, demonstrated the absence of hostility toward the organizing campaign and union organizers. Finally, it contends even if the University's campaign was evidence of union animus, animus on the part of the University is not necessarily imputed to individual decision-makers. Rutgers contends Charging Party must demonstrate each decision-maker was hostile toward the individual employee's exercise of protected activity.
The threshold decision on the consultant issue is whether Rutgers had a legal right to engage in pre-election campaigning and could encourage employees to vote against representation.
The unfair practice standard used to consider whether employer communications to employees violates the Act was developed in the private sector. In N.L.R.B. v. Corning Glass Works, 204 F.2d 422 (1st Cir. 1953) the court interpreted the free speech provision of the National Labor Relations Act (NLRA) and held:
. . . the Constitution of the United States protects an employer with respect to the oral expression of his views on labor matters provided his expressions fall short of restraint or coercion . . . and section 8(c) of the Act . . . protects an employer with respect to like expressions in written, printed, graphic or visual form, provided his expressions contain "no threat of reprisal or force or promise of benefit. Id. at 425- 426.
The U. S. Supreme Court adopted that same language in NLRB v. Gissel Packing Co., 395 U.S. 575,
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618 (1969):
. . . An employer is free to communicate with his employees any of his general views about unionization or his specific views about a particular union, so long as his communications do not contain a threat of reprisal or force or promise of benefit.
Although the specific language of section 8(c) of the NLRA does not exist in the New Jersey Employer-Employee Relations Act, the Commission has adopted the 8(c) standard. Camden Fire Dept., P.E.R.C. No. 82-13, 8 NJPER 309 ( & 13137 1982); Rutgers, The State University, P.E.R.C. No. 83-136, 9 NJPER 276 ( & 14127 1983); State of New Jersey (Trenton State College), P.E.R.C. No. 88-19, 13 NJPER 720 (& 18269 1987).59/ A public employer may express opinions about unions as long as the statements are non-coercive. Black Horse Pike Reg. Bd. of Ed., P.E.R.C. No. 82-19, 7 NJPER 502 (& 12223 1981).
Rutgers had a right to conduct a campaign generally urging APS employees to vote against unionization. School Dist. of Chathams, P.E.R.C. No. 91-112, 17 NJPER 334 ( & 22147 1991). Absent either a threat of reprisal or promise of a benefit, its written or oral communications with APS staff before and after the campaign are protected as free speech. The secondary issue in this case is whether Rutgers' campaign crossed the line from permissible conduct to interference with the rights of employees under 5.3 of the Act to ". . . freely and without fear of penalty or reprisal . . . form, join and assist any employee organization or to refrain from any such activity." Once that line is crossed, union
59/ Lullo v. Int'l Assn of Firefighters, 55 N.J. 409 (1970) and Galloway Tp. Bd. of Ed. v. Galloway Tp. Assn. of Educ'l Secretaries, 78 N.J . 1 (1978) support the recommendation that section 8(c) of the NLRA be adopted in New Jersey.
H.E. NO. 2003-2 248.
animus is inferred.
The thrust of the University's campaign was two-fold: (1) it trained its managers how to conduct themselves during the campaign and election through meetings with Norman and outside consultants, and (2) it mailed literature to eligible employees explaining the election process, the issues and urging them to "Vote No."
Charging Party makes no assertion that any campaign literature contained a threat of reprisal or promise of benefit. The University's campaign literature was informational in tone and contained no factual misrepresentation. D'Arcy, the acknowledged leader of CWA's effort, described the University's announcement on the eve of the November 17 th election in its newspaper, the Rutgers Focus , as neutral in tone. She also confirmed that a message containing dues calculations attached to employee pay stubs and distributed on the eve of the election was accurate.
Regarding the hiring of outside consultants, the campaign impacted approximately 2,000 APS employees in all departments throughout the University system. Hiring consultants to assist the central administration and provide expertise was consistent with Norman's concern that the campaign be conducted fairly and correctly: he wanted to make sure those representing the University understood the rules of engagement. The consultants and Norman met once or twice with groups of managers training them on the "dos" and "don'ts" regarding a union organizing campaign. Witnesses Waldman, Webb, Warshaver and Otzenberger, who attended these meetings, confirmed the sessions were educational and assisted them in understanding how to conduct themselves appropriately during the campaign. Warshaver particularly remembered being advised not to make any promises if discussing the University's position with employees. Otzenberger's contemporaneous notes of a November 15
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meeting with a small group of managers reflected the type of advise handed out by Norman; the attendees were told to urge eligible employees to vote, discussed the University's official ballot counters, described a mailing encouraging voters to follow ballot instructions, explained the professional option and significance of the "24 hour" rule (prohibiting captive audience meetings with employees within 24 hours before an election) and explained generally how to answer employee questions relating to eligibility.
Hiring consultants is consistent with the University's right to run a "Vote No" campaign. CWA's characterization of the consultants as "union busting" may be its view of the University's action, but was not evidence of unlawful behavior.
Based on the foregoing, I do not find the Charging Party's contention that the University's "Vote No" campaign, e.g ., hiring consultants, meetings/training sessions with its managers and campaign literature, constitutes union animus. See generally Atlantic Cty. Utilities Auth ., P.E.R.C. No. 94-97, 20 NJPER 195 ( & 25091 1994) (employer statements during organizational campaign by employer concerning the likelihood of subcontracting did not demonstrate unlawful motivation and did not constitute unlawful threats merely by discussing possible pitfalls of collective bargaining); Atlantic Comm. Coll., P.E.R.C. No. 87-33, 12 NJPER 764 ( & 17291 1986) (letters from a college administrator to faculty urging them to vote against union representation did not constitute unlawful interference where the communication contained no threats or promises of benefits and generally urged employees to vote no). Cf.. Sea Breeze Health Care Center, 331 NLRB No. 149, 168 LRRM 1418 (2000) (employer's "Union Truth Quiz" during election campaign consisting of 17 questions with antiunion bias and a prize of $1427.60 for completing quiz to be given to employee's favorite charity
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violated LMRA).
The Administrative Assembly and Richard Bird: the Olzewski Document and August 1996 Motion
Charging Party contends the University monitored Administrative Assembly activities through Assembly Delegate Richard Bird to control the Assembly and frustrate unionization efforts. It asserts Rutgers encouraged him to distribute an anti-union document (the Olzewski document) at an Assembly meeting. It contends that after the election the University, through Bird, introduced a motion at the August 1996 Assembly meeting to have CWA supporters resign from the Administrative Assembly. CWA contends the motion pressured D'Arcy, a union organizing leader, to resign as Assembly president. These actions, it argues, demonstrate union animus and are attempts by the University to dominate or interfere with CWA's organizing efforts in violation of 5.4a(2) of the Act.
Respondent counters that Bird was active in the Assembly for years, opposed unionization and freely exercised his right to express those views. It asserts Bird was not acting as Rutgers' agent when he brought the Olzewski document to an Assembly meeting for dissemination and when he introduced the motion at the August 1996 Assembly meeting. It contends Bird introduced the motion, which was never voted upon, not to stop union activities but out of a concern for having the administration take the views of the Assembly seriously. D'Arcy's resignation from the Assembly presidency was not primarily the result of University pressure. Finally, Rutgers asserts Bird's actions had nothing to do with the personnel decisions affecting D'Arcy, Tarter, Randolph and Chepitch.
Commission cases dealing with a(2) claims generally involve organizational rights or the actions of an employee with a conflict of interest caused by his membership in a union and his position as an agent of an employer. Union Cty. Reg. Bd. of Ed., P.E.R.C. No. 76-17, 2 NJPER 50 (1976);
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Middlesex Cty. (Roosevelt Hosp.), P.E.R.C. No. 81-129, 7 NJPER 266 (& 12118 1981), Camden Cty. Bd. of Chosen Freeholders, P.E.R.C. No. 83-11, 9 NJPER 156 (& 14074 1983). While motive is not an element of an a(2) offense, there must be a showing that the acts complained of actually interfered with or dominated the formation, existence or administration of the employee organization. The Commission has held that the type of activity prohibited by 5.4a(2) must be "pervasive employer control or manipulation of the employee organization itself." North Brunswick Tp. Bd. of Ed., P.E.R.C. No. 80-122, 6 NJPER 193, 194 (& 11095 1980). Such is not the case here.
CWA's assertion that Bird monitored Assembly activities for the University to control it and frustrate unionization efforts is not supported by the evidence. Under Assembly bylaws, the University was entitled to be represented in the Assembly by one non-voting delegate appointed by the president. Vice-President Norman, through his designated representative, Stephen Otzenberger, regularly attended general Assembly and Assembly committee meetings, received Assembly newsletters and other materials and spoke frequently with D'Arcy and other delegates. D'Arcy routinely submitted Assembly material to Otzenberger for approval prior to distribution, although he never censored any mailings. Assembly meetings and activities, both before and after the 1995 campaign, were open to the delegates attending, the APS staff through Assembly newsletters and other mailings and to the University through Norman's office. There was no need for the University to utilize the services of Bird to monitor the Assembly activities or the sentiment of delegates.
In support of its contention, CWA relies on a March 17, 1995 e-mail from Bird to Otzenberger. The Bird e-mail alerted Otzenberger that "the sentiment for unionization is gathering momentum like a runaway train" and urged the University to publicize its efforts to protect APS staff
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regarding health benefits, the core issue driving unionization efforts. However, the information imparted by Bird's e-mail was not new or privileged information. The same concerns were expressed t24 hours earlier in a March 16, 1995 e-mail from D'Arcy to Otzenberger. In D'Arcy's e-mail, she urged Otzenberger and Norman to put the brakes on a situation she also described as a "runaway train" leading to a demand for unionization of the APS staff. The information imparted by Bird to Otzenberger and the concerns he raised were identical to D'Arcy's. Both felt University action addressing the health benefits issue was key to forestall unionization. Both, as members of the Assembly, were entitled to communicate their views to the University Assembly liaison, Otzenberger. Bird's communication carries no more significance than D'Arcy's and is not evidence of union animus.
Next, CWA asserts Bird acted as the University's agent when he assisted another Assembly member, Charles Olzewski, in disseminating a document opposing the CWA organizing effort at an Assembly meeting. CWA contends Bird's actions violated University guidelines prohibiting campaigning in the Assembly. It argues the University, through Bird, violated its own rules. The CWA contends this is evidence of union animus. CWA bases its contention on discussions and an e-mail communication between Bird and Otzenberger.
The University contends that while it might have agreed with the sentiments expressed by Olzewski, it was careful not to involve itself in its distribution or to give its approval to it in any way. Rutgers asserts that an employer's decision not to suppress employee speech opposed to unionization does not constitute union animus. The employee was entitled to the same "free speech" protections as the CWA and the University.
Bird opposed the unionization effort and Olzewski's document mirrored Bird's views. When
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Olzewski initially approached Bird and asked him to co-author the document, Bird suggested they run the document by the University to make sure distributing it was not illegal and would not interfere with the University's own "Vote No" stance. Bird also wanted the University to fund its distribution. Bird brought the document to Otzenberger who told Bird he would speak to Norman about it.
Although Norman agreed with the sentiments expressed by Olzewski's document he told Otzenberger it was not appropriate to distribute or discuss it at the Assembly. Additionally, Norman refused to provide University assistance to Olzewski or Bird in its production or distribution. Otzenberger communicated Norman's sentiments to Bird. Bird told Otzenberger he would just bring the document to the Assembly meeting on his own and leave it in the back of the room. Bird and Otzenberger confirmed that Otzenberger neither encouraged nor authorized Bird to distribute the document at the Assembly and the University provided no assistance, financial or otherwise.
Olzewski authored the document opposing the CWA effort. CWA does not contend the sentiments expressed by Olzewski were threatening or coercive. Therefore, the views expressed were protected by free speech rights. Black Horse Pike . CWA suggests Bird was acting as the University's agent when he brought the document to the Assembly for distribution which violated University guidelines prohibiting campaigning in the Assembly. It asserts Bird's violation of the guidelines is evidence of Rutgers' union animus. I find, however, that Bird acted on his own neither representing the University nor restricted by it.
In Commercial Tp. Bd. of Ed., P.E.R.C. No. 83-25, 8 NJPER 550 ( & 13253 1982), aff'd 10 NJPER 78 ( & 15043 App. Div. 1983), the Commission, citing R. Gorman, Basic Text on Labor Law at pp. 134-137 (1976), found the employer violated the Act when its superintendent and principal made
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threats and were acting within their apparent authority as Board agents whether the Board formally ratified or even knew of the threats. Gorman also provides the agency standard for employees who are not supervisors. They are "not presumed to be acting on behalf of the employer unless they are acting within the general scope of their employment or management has instigated such conduct or has ratified it after the fact (either expressly or by silence). Gorman at 135. See Matawan-Aberdeen Reg. Bd. of Ed., P.E.R.C. No. 85-110, 11 NJPER 307 (& 16109 1985) (individual Board member did not act as an agent of the Board where record established that he acted adversely to the desires of the Board and Board did not ratify his actions). Cf. Barnegat Tp. Bd. of Ed., P.E.R.C. No. 91-18, 16 NJPER 484 (& 21210 1990) (payroll clerk's actions mistakenly extending unused personal day benefits to custodians and cafeteria workers bound Board where her actions were within the general scope of her employment). Even assuming Rutgers administration had a duty to police the distribution of campaign literature under its own guidelines, there is no evidence that when Bird brought the Olzewski document to the Assembly meeting, he was acting on behalf of the University or at its direction.
Next, CWA contends Bird acted as an agent of the University in introducing an August 1996 motion in the Assembly seeking to remove CWA supporters including D'Arcy. It asserts Bird acted on behalf of Norman and the administration to force D'Arcy and others out of positions of leadership in the Assembly to punish them for their union activities and forestall future unionization. These actions, it argues, is evidence of Rutgers' union animus. It relies on a series of e-mail exchanges between D'Arcy and Bird. CWA maintains the e-mails demonstrate Bird's motion reflected Norman's desire not to see "union activists" in Assembly leadership roles. It asserts the e-mails are evidence of Rutgers' union animus.
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Respondent asserts Bird was not the University's agent when he introduced the motion. He acted on his own out of a legitimate concern the administration was ignoring the views of the Assembly, because D'Arcy, as Assembly president, and other Assembly delegates were more aligned with the unionization effort than the success of the Assembly. Bird was not seeking to stop union activity.
In December 1995, after the election, when D'Arcy ran for a second term as Assembly president, Bird expressed concern to her that she "could not ride two horses" (see finding of fact no. 49), meaning, supporting CWA and being Assembly president. After being assured by D'Arcy that she would concentrate on her role as Assembly president, Bird supported her reelection. Bird, however, later became concerned when he learned, after being invited to join a focus group, that D'Arcy was still involved in union organizing activities.
After the 1995 election and the second organizing effort, the University determined it needed to define the most important issues to APS employees and address them. It formed focus and advisory groups consisting of managers and APS employees. Bird became convinced the administration, and Norman in particular, did not trust the leadership of the Assembly because some, especially D'Arcy, were CWA supporters who had no interest in seeing the Assembly succeed. Bird felt the focus group was usurping the role or function of the Assembly.
In July 1996, a series of e-mails ensued between Bird and D'Arcy which reinforced Bird's conviction that D'Arcy's continuing support of the CWA would result in her subconscious desire to see the Assembly fail. No matter what Norman's feelings were at this time, Bird, himself, believed D'Arcy's dual roles as Assembly president and CWA organizer was detrimental to the Assembly. These concerns prompted the August motion. I find Bird continued to act on his own volition, and not
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as an agent of the University, to protect the viability of the Assembly as an independent collegial body.
Even if Norman expressed to Bird or anyone else his concern about D'Arcy's ability to keep her activities as Assembly president and CWA supporter separate, his comments about that conflict of interest were non-coercive and within the sphere of permissible opinion or discussion under Black Horse Pike. In Ridgefield Park Bd. of Ed ., P.E.R.C. No. 84-152, 10 NJPER 437 ( & 15195 1984), the Commission affirmed a Hearing Examiner's decision, finding a principal's statement that a union vicepresident should resign from an advisory committee did not constitute unlawful interference. In particular, the Commission found the principal's suggestion that the union representative should not also serve on the local advisory committee because the principal believed her position as union grievance chairperson would compromise her objectivity on the Advisory Council was within the sphere of permissible criticism and discussion under Black Horse Pike. Like Ridgefield , Norman and the administration had a concern during the 1995 CWA campaign about D'Arcy's ability to keep her role as Assembly president separate from her activities on behalf of the CWA organizing drive. Rutgers developed campaign guidelines to address this issue. Unlike Ridgefield , D'Arcy was never asked nor encouraged by the administration to resign from the Assembly presidency.
Moreover, the Assembly was created by Rutgers as an advisory body to assist the administration in addressing concerns of the APS staff. It does not have the status of majority representative as defined by our Act. In Rutgers, The State University, P.E.R.C. No. 76-13, 2 NJPER 13 (1976), the Commission distinguished the University's delegation of a broad range of managerial functions to collegial bodies made up of faculty and/or administrative employees from collective negotiations rights exercised by those employees. It recognized that collegial governance is a "historical
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reality" in the field of public higher education which may exist simultaneously and harmoniously with collective negotiations rights. However, the Commission also recognized that the collegial body and majority representative have separate functions.
By seeking advice and recommendations from the Assembly, the University, to a degree, delegated managerial functions regarding issues of policy for APS employees' concerns, and Assembly delegates became a functional part of management in that respect. Therefore, D'Arcy's voluntary participation in the Assembly and any concerns raised by Norman regarding D'Arcy's ability to remain objective in her role as Assembly president goes to the essence of collegial governance and did not interfere with D'Arcy's rights to organize for CWA. Norman's opinion and statements in this regard are not as much a free speech right as D'Arcy's expressed support for the CWA while serving as Assembly president. Norman did not prohibit D'Arcy from organizing on behalf of the CWA, his concerns related solely to the Assembly.
As to D'Arcy's resignation from the Assembly in August 1996, the evidence supports a finding that the decision was D'Arcy's alone and was prompted by many factors, not the least of which were significant family difficulties involving both her daughters and her parents which affected her professional and personal life. D'Arcy confirmed that no one in the administration prevented her from maintaining her dual roles or suggested she resign her Assembly presidency. Since Bird's motion was withdrawn and not voted on, I do not infer that it caused D'Arcy to resign. Even if it was one of many factors prompting D'Arcy's decision, Bird's motion does not demonstrate union animus on the part of Rutgers. Bird was not their agent: the motion came from his own concerns about D'Arcy's and others' dual roles within the Assembly and CWA. His actions were neither instigated by management nor ratified
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after the fact. In any event, Bird's participation in the Assembly is no more indicative of agency than D'Arcy's or any other delegates' similar participation. They are co-equals with differing view points.
Lawrence's Cocktail Party Statement
In April 1995, D'Arcy attended a cocktail party at President Lawrence's house. Lawrence introduced D'Arcy to the chair of the University's board of governor's stating ". . . this is the woman who is causing all the ruckus or something like that." D'Arcy understood the remark to be humorous, a joke. CWA asserts the remark is evidence of union animus. Rutgers responds that President Lawrence's state of mind is irrelevant since there is no evidence he played a role in any of the actions complained of. Additionally, relying on Auguster v. Vermilion Parish School Board, No. 00-30736, U.S.C.A. (5 th Cir. 5/3/01), it contends stray remarks are not sufficient to prove motive unless they are made in close proximity to the action taken, made by the individual with authority over the decision at issue and made in connection with the decision.
In Burlington County Prosecutor, P.E.R.C. No. 92-29, 17 NJPER 465 (& 22221 1991), the Commission found a supervisor's comment referring to an employee's union button as being red and an insignia of a commie was said in a "joking fashion" and was, therefore, not unlawfully coercive or threatening.
D'Arcy did not feel threatened by the remark nor did she consider it anything more than casual, friendly banter. It occurred two months before the filing of the representation petition by CWA and at a time when the Assembly and Rutgers were still working together on the health benefits issue. Like Burlington , Lawrence's statement was said in a joking fashion and was, therefore, not unlawfully coercive or threatening. Moreover, there is no evidence on the record that President Lawrence played
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any role in the subsequent personnel actions affecting D'Arcy, Tarter, Randolph or Chepitch. The evidence establishes that personnel decisions are made locally on the individual campuses not by central administration. Consequently, I do not find the remark violated the Act.
The Focus/Advisory Groups
After the 1995 election, the administration formed focus and advisory groups to help it identify and address concerns of the APS employees. The groups were made up of management employees and APS employees. CWA contends the formation of these groups is evidence of union animus. It cites no cases in support of this proposition Respondent asserts these groups had nothing to do with the actions complained of by Charging Party and are not evidence of animus.
Just as the University had a right to form the Administrative Assembly as an advisory group, the formation of focus or advisory groups is an extension of the University's right to delegate managerial functions to collegial bodies and is not automatically evidence of union animus. See Rutgers, The State University, supra . The University created these groups to address concerns of unrepresented employees with the obvious hope it would encourage them to remain unrepresented. That alone is not evidence of animus; it is part of the University's management program and also protected by its free speech rights.
Comparative Evidence of General Hosility
CWA contends Rutgers' central administration was hostile to the CWA effort and by its hostility gave a "green light" to University managers to take adverse personnel actions against union organizers. Rutgers denies that its central administration was hostile to the CWA and introduced evidence regarding treatment of similarly situated individuals, e.g., other CWA organizers, between
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May of 1995 and March of 1999, to support its contention.
CWA contends the comparative evidence is not relevant because D'Arcy, Tarter, Chepitch and Randolph were different from other campaign activists since they were the lead organizers. With the exception of D'Arcy, however, there was no credible evidence Tarter, Randolph or Chepitch were lead organizers or differently situated from others whose names and pictures appeared in the CWA mailings. Moreover, Chepitch's name did not appear in any CWA literature nor did she write any articles for CWA mailings. Although Charging Party asserts Chepitch was " the Union presence" on the Newark campus, it offers no evidence in support of its contention. Also, although Tarter's and Randolph's name and picture appeared in the CWA newsletters and mailings, 61 other names also appear in support of the CWA effort. D'Arcy described all of the individuals listed in the Administrative Organizers as lead organizers.
Evidence of personnel actions taken regarding 61 CWA organizers (other than D'Arcy, Tater, Randolph and Chepitch) revealed no pattern of hostility; in 1995 and 1996 Rutgers either took no action or promoted the majority of employees who were CWA organizers. There is no inference of hostility to be drawn from the University's treatment of similarly situated CWA supporters during the 1995 campaign or afterwards.
Knowledge and Hostility of Individual Decision-Makers
Rutgers asserts that the central administration was not hostile to the CWA campaign but contends, even if it were, CWA has not established that the decision-makers had knowledge of or were hostile to the protected activities. Personnel actions were taken locally on the various campuses and in different departments. Knowledge and hostility, it contends, must be actual not imputed. In
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support of its contention, it cites several cases. It particularly it relies upon UMDNJ, P.E.R.C. No. 98- 127, 24 NJPER 227 ( & 29107 1998) and Tp. of Teaneck , P.E.R.C. No. 2000-45, 26 NJPER 48 ( & 31018 1999). In UMDNJ , the Commission found the charging party did not meet her burden under Bridgewater because she did not demonstrate that the decision-maker had knowledge of the individual's union activities. Similarly, in Teaneck , the Commission found no 5.4a(3) violation where the record contained no evidence the supervisor/decision-maker acknowledged or cared in any way about charging party's protected activity.
CWA contends an inference should be drawn here that the decision-makers' actions were causally related to the administration's alleged hostility to the CWA organizing effort. It cites no cases in support of its assertion. It nevertheless asserts the actions of Rutgers in opposing the CWA campaign and setting up focus/advisory groups after the election sent a strong message to University managers to take action against lead organizers. That assertion is not persuasive.
In Village of Ridgewood, P.E.R.C. No. 99-114, 25 NJPER 341 ( & 30147 1999), the Commission considered the issue of transferred hostility. It rejected an ALJ's recommended decision and found no direct or circumstantial evidence of union animus where the employee's immediate supervisor, the decision-maker, was not hostile to the employee's union activities even though other supervisors' exhibited hostility to the employee's activities as a shop steward. Similarly, in UMDNJ, supra ., the Commission adopted a hearing examiner's recommended decision dismissing CWA's charge alleging the employer discriminated against an employee for participation in CWA's organizing campaign and subsequent negotiations team. The charge asserted the employee was laid-off during a reorganization and not re-employed in retaliation for the exercise of these activities. The hearing
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examiner determined that when the recommendation to reorganize was made, the individual responsible for the recommendation had no knowledge of the employee's participation on the negotiations team and was not hostile to the organizing activity. See also State of New Jersey (Dept. of Human Services ), P.E.R.C. No. 96-20, 21 NJPER 352 ( & 26218 1995) (the Commission dismissed a charge alleging the State terminated a per diem nurse because of her organizing efforts, although the timing of the discharge two weeks after an organizing meeting was suspicious, the evidence supported finding the supervisor who terminated the nurse acted independently of her superiors and was not aware of the nurse's protected activity); South Jersey Port Corp., H.E. No. 98-8, 23 NJPER 555 ( & 28277 1997) (hearing examiner dismissed a charge alleging employer constructively discharged a port guard because of his support of a organizational campaign, finding evidence failed to show that the supervisor responsible for obtaining the guard's "resignation" had knowledge of his involvement in the organizing campaign and concluded, absent knowledge by the decision-maker, the protected activity could not have been a substantial or motivating factor in the constructive discharge).
There is no evidence in the record that President Lawrence, Vice-President Norman, Director Otzenberger or anyone else from upper management played a role in the personnel actions affecting D'Arcy, Tarter, Randolph or Chepitch. The decisions were made locally on different campuses and/or departments of the University by different individuals. In order to find a violation, it is necessary to examine the individual circumstances surrounding the individuals and actions taken.
Maureen D'Arcy
The parties do not dispute that D'Arcy exercised protected activities in 1995 and for a few months in 1996. President Lawrence, Vice-President Norman and Director Otzenberger were aware
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of her activities through her participation in the Administrative Assembly and discussions with her.
CWA contends that shortly after D'Arcy announced the RAPSS effort, she was targeted in retaliation for her continuing support of CWA. A series of allegedly harassing incidents occurred beginning in May 1996 and continued through August 1996. These incidents involved a letter from the campus police chief to D'Arcy asserting interference with fire emergency procedures, Provost Gordon's veto of D'Arcy's merit award for 1995/1996, a written warning from her immediate supervisor for by-passing the chain of command, a reprimand for mishandling a dormitory theft incident and a denial of D'Arcy's request for leave time to take her daughter to college.
CWA also contends that shortly after Otzenberger learned of the RAPSS effort, a 1997 reorganization on the Camden campus was launched to discourage D'Arcy and others from becoming involved in union organizing efforts. In support of its contention, CWA asserts Camden associate Provost Mark Rozewski's project objectives did not match the purpose of the study conducted by outside consultants, and D'Arcy was not interviewed by the consultants even though, as director of housing, she supervised housing custodial/maintenance employees and her operation would be impacted.
Finally, CWA contends the manner in which the reorganization was conducted evidenced hostility to D'Arcy's protected activities; procedures were not followed, her employees were locked out, locks were changed and she was not given keys.
Rutgers disagrees that the 1997 Camden reorganization was launched to retaliate against D'Arcy. It contends the 1997 reorganization was too remote in time from her protected activity to support an inference of hostility. Additionally, Rutgers contends Rozewski, who was responsible for
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the 1997 reorganization on the Camden campus, was working in New Brunswick when D'Arcy was involved in organizing efforts; he was not aware of D'Arcy's protected activities, consequently, not hostile to them.
Rutgers also asserts the reorganization had a legitimate business rationale, to effectuate savings and shift dollars to academic initiatives. Rutgers asserts D'Arcy suffered no adverse personnel action from the reorganization; her title, salary and benefits remained the same. Rutgers contends the implementation of the reorganization may have embarrassed D'Arcy because it was not conducted with finesse, but reorganizations are rarely implemented smoothly.
Regarding the specific incidents of alleged harassment, Rutgers contends the incidents occurred well after D'Arcy ceased her union activity in April 1996, and were largely the same types of incidents she experienced before her involvement in the CWA campaign. It characterizes D'Arcy as hypersensitive and the incidents as everyday events (fire alarm and report of dormitory theft) to which D'Arcy overreacted. More importantly, Rutgers asserts there is evidence some individuals involved in the incidents had no knowledge of D'Arcy's union activity and none harbored animus to that activity.
Timing of Events Affecting D'Arcy
Rutgers cites numerous cases to support the proposition that timing is an important factor in determining whether or not hostility or union animus can be inferred. Rutgers contends the timing of events affecting D'Arcy are too remote to support an inference of hostility. In particular, Rutgers relies on two cases: Tp. of West Orange, P.E.R.C. No. 99-76, 25 NJPER 128 ( & 30057 1999) and In re Warren Cty ., H.E. No. 95-26, 21 NJPER 255 ( & 26164 1995). In Tp. of West Orange , the Commission found remarks by a supervisor a year before an employee's resignation were too remote
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in time to support a finding of retaliation (constructive discharge) for protected activities (union organizing activities). However, in Warren Cty ., the Hearing Examiner found a termination 20 days after reinstatement as a result of a grievance arbitration supported an inference of hostility to protected activities.
With regard to the alleged harassing incidents here, the timing of the events between May 1996 and August 1996, is close to D'Arcy's protected activities ending in April of 1996. CWA alleges the timing of these events is suspicious. However, even if timing was suspicious, Rutgers had legitimate business reasons for each incident. Timing in these instances is not evidence of hostility or union animus.
With regard to the 1997 reorganization, the timing, more than a year after D'Arcy ceased involvement in the CWA organizing effort, is too remote, without other evidence, to support an inference of hostility.
May-August 1996 Personnel Actions
a. CWA contends D'Arcy's June nomination for a merit award for the 1995/1996 academic year was vetoed by Provost Gordon in retaliation for D'Arcy's organizing activities. Charging Party, however, failed to establish Gordon's decision was in any way connected to D'Arcy's CWA activities. D'Arcy's testimony about her conversation with Gordon indicates she was not treated differently because of her union activities; Gordon overrode her nomination because it was poorly written and he felt she was not a good executive. He denied a connection between his decision and her union activities. There is no independent evidence to support an inference that he acted for motives other than those stated. Moreover, Gordon turned down nominations in the past from which decision
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employees appealed to Norman. Therefore, although this might have been the first time Gordon reversed a nomination by Maradonna, it was not a unique or unprecedented action on his part. Also, by 1996, D'Arcy had only received one other merit award which was for the 1992/1993 academic year. She did not receive them consistently before the CWA campaign nor did she receive them consistently afterwards, e.g ., she received one merit award in 1998. Therefore, I find the 1996 decision not to give D'Arcy a merit award is not evidence of animus.
b. The Charging Party contends a reprimand given to D'Arcy by her supervisor, Cynthia Riggs, was in retaliation for her activities on behalf of CWA. It asserts that D'Arcy had never been disciplined before her participation in the CWA organizing campaign.
In June 1996, Riggs issued a reprimand to D'Arcy because Riggs found out D'Arcy had gone to her (Riggs') boss, Maradonna, about a theft incident in the dormitories. Riggs felt D'Arcy had broken the chain of command. D'Arcy went to Maradonna only after reporting the theft incident to Riggs and getting no assistance from her. Whether D'Arcy correctly by-passed Riggs or whether Riggs' reprimand was warranted are not the issues. D'Arcy was not engaged in protected activity at the time she reported the theft incident. She was not acting as a CWA representative, but in her capacity as director of housing. The evidence supports that the reprimand was issued not out of hostility to D'Arcy's CWA organizing activities, but because Riggs perceived D'Arcy had gone over her head, thereby breaking the chain of command. Cf. Camden Cty. Sheriff, P.E.R.C. No. 2001-55, 27 NJPER 184 (& 32060 2001) (where the Commission found the Camden county sheriff violated the Act when he reprimanded a sheriff's officer for reporting safety conditions in his capacity as PBA delegate and evidence indicated he did not go outside the chain of command. Commission also found
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that if the officer had gone outside the chain of command, the sheriff should have discussed it with him in his capacity as a union delegate, not as an employee.)
Also, there is no evidence to suggest that Riggs was hostile to D'Arcy's organizing efforts on behalf of the CWA. The evidence supports the opposite conclusion. D'Arcy and Riggs frequently discussed the CWA organizing campaign and unionization. Riggs expressed excitement about D'Arcy's challenging Rutgers on behalf of the administrators like herself and unionizing them. Riggs was initially eligible to vote. Nothing in the record suggests her attitude changed after she was removed from the eligibility list.
c. CWA also contends that a letter from University Police Chief Thompson criticizing D'Arcy for interfering with fire scene procedures was issued in retaliation for D'Arcy's protected activities. CWA contends Zuccarello's directive set forth new procedures and D'Arcy was admonished unfairly for follow pre-existing procedures, e.g ., only fire department personnel could silence an alarm. It asserts Thompson's letter and the meeting were the result of retaliation for D'Arcy's support of CWA.
The evidence does not support the general CWA contention. D'Arcy was on notice from 1994 that Rutgers police were authorized to silence alarms. As a result of a 1994 incident where D'Arcy's assistant manager mistakenly silenced a fire alarm, Zuccarello directed D'Arcy to adopt operating procedures directing that only Rutgers police or Camden fire department personnel could silence an alarm. Zucarello's directive recognized the authority of the Rutgers police at the fire scene independent of the presence of fire department personnel; not every fire alarm resulted in calling in the fire department. D'Arcy's conclusion that until the fire department arrived no one was in charge and, therefore, no one could silence an alarm was mistaken. In any event, common sense dictates that at the
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scene of an emergency someone must take control to ensure the appropriate actions are taken to avoid injury.
Although D'Arcy thought she was following correct procedures, Thompson and Chief Zuccarello disagreed with her. Thompson's letter and the meeting with Riggs and D'Arcy grew out of that disagreement and not in response to D'Arcy's CWA activities. Additionally, there is no evidence Thompson or Zuccarello were aware of D'Arcy's union activities or were hostile to them.
d. In August 1996, two students reported thefts from their dormitory rooms. D'Arcy called her custodial staff together to discuss the thefts and cautioned them to work in pairs to avoid having body searches when they left the building. One of the employees got very upset and felt D'Arcy was violating her constitutional rights. The employee threatened D'Arcy and was escorted out. D'Arcy summoned the police.
There is no basis to conclude that Maradonna was motivated by hostility to D'Arcy's union activities in the way he responded to this matter. The written warning addressed concerns raised by D'Arcy's mishandling of a situation with her staff. D'Arcy's statements to her staff caused one employee to become so upset her actions precipitated police presence. D'Arcy herself acknowledged both during Maradonna's investigation and in her testimony that her actions were not appropriate. She recognized there would be consequences for her poor judgment. Consequently, I conclude the written warning was not in retaliation for her union activities.
e. Finally, CWA contends Riggs' August denial of D'Arcy's request for leave time to take her daughter to college was in retaliation for D'Arcy's union activities. Even if Riggs' denial was insensitive or unreasonable, there is no support for the conclusion the denial was related to D'Arcy's activities as a
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union organizer. As previously discussed, Riggs was sympathetic to D'Arcy's union efforts.
The 1997 Camden Reorganization
CWA asserts a 1997 reorganization of the Camden campus was launched to discourage D'Arcy and others from mounting another organizing campaign. It contends reorganization efforts began shortly after Otzenberger had lunch with Beverly Tarter and Jane Chepitch and learned about the second CWA organizing effort known as RAPSS. It asserts the reorganization had serious implications for D'Arcy and sent a clear message to all employees on the consequences for leading union organizing campaigns. CWA contends the fact that D'Arcy was not in the loop and only learned of the consultants' study after her assistant manager was interviewed is evidence the reorganization was pretextual. Finally, CWA asserts the manner in which the reorganization was conducted by police presence, the changing of locks, the refusal to give D'Arcy a key to her building and the refusal to let her speak with her staff were actions taken in retaliation for her union activities.
Rutgers asserts the reorganization which was effectuated in August 1997 after a study by independent consultants DeLoitte and Touche was legitimate. It accomplished the goals of enhancing academic initiatives while eliminating administrative redundancies. Rutgers contends D'Arcy suffered no adverse consequences; she retained her title, salary, benefits and hours of work and lost no promotional opportunities. It contends Mark Rozewski who was responsible for the reorganization only came to the Camden campus in October 1996 well after D'Arcy's involvement with CWA, knew nothing of her union activities and was not hostile to her involvement in the organizing efforts.
Mark Rozewski was responsible for the 1997 reorganization on the Rutgers New Brunswick campus as director of physical and capital planning during the operative period in 1995 and briefly in
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the spring of 1996 when D'Arcy was campaigning for CWA. He had no role in the central administration's "Vote No" campaign led by Norman. He was not eligible to vote, received no CWA literature and met D'Arcy for the first time when he was promoted to the position of associate provost of administration and finance on the Rutgers Camden campus in October 1996. Although in January 1997, he was appointed to a post-election advisory group together with approximately 70 other managers to help the administration identify concerns of APS staff, he did not participate in the group nor was he aware of its responsibilities. There is no evidence Rozewski was aware of D'Arcy's union activities.
Even assuming her visibility as leader of the campaign would have come to his attention, there is no evidence that Rozewski was at all hostile to the CWA campaign or specifically to D'Arcy's role in it. Prior to his employment at Rutgers in 1979, Rozewski had experience as a union shop steward, member of a collective negotiations team and later as leader of an unsuccessful campaign to organize department store employees. He harbored resentment against the department store employer for what he believed was retaliation for leading the organizing effort. Without any direct or circumstantial evidence otherwise, Rozewski's experience suggests he would be sympathetic to union organizing efforts and not seek to retaliate against D'Arcy for her role in the campaign.
CWA's assertion that the reorganization effort began shortly after Otzenberger learned from Tarter and Chepitch about RAPSS, is not supported by the time line. RAPSS began in the winter of 1996, after the election, and ended sometime in the summer of 1996. The luncheon with Otzenberger took place in the spring of 1996, not in the spring of 1997 as Charging Party claims in its brief. Rozewski and Camden Provost Dennis initiated a management audit study in the winter of 1997. The
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study culminated in July 1997 and the reorganization was implemented in August 1997. The timing of these events does not support an inference of hostility. Tp. of West Orange, supra.
Rutgers maintains that since there was no change in D'Arcy's salary, benefits, work hours or other terms and conditions of employment, there was no adverse personnel action arising from the reorganization. Other than removing the supervisory responsibilities for the custodial/maintenance staff, D'Arcy's salary and benefits package did not change. Removal of responsibilities, however, may constitute an adverse personnel action because of impact on promotional opportunities. In this instance, since the reorganization D'Arcy has had more time to address issues relating to student room assignments and improving the facilities to attract students to live on campus as opposed to commuting. On balance, there appears to have been no adverse impact on her career.
Additionally, the facts do not support CWA's contention that the reorganization was launched as a pretext to retaliate against D'Arcy and send a message to others not to attempt a union organizing effort. In the winter of 1997, enrollment in Camden was down as evidenced by the vacancy rate in the Camden housing units which was the highest in the Rutgers system. There was an immediate need to cut operational costs to offset the subsidy of the housing operation. Also, there was no additional State funding for new faculty positions. Rozewski and Dennis determined it was necessary to reallocate resources internally in order to enhance academic initiatives, thereby increasing enrollment and reducing the housing vacancy rate.
The reorganization accomplished Rozewski's and Dennis' goals of effectuating savings through the reallocation of internal resources to academic initiatives. The reorganization resulted in over $200,000 in savings which Rozewski converted to funds for hiring faculty members in the computer
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sciences, psychology and sociology departments as well as the creation of a new program in criminal justice. Savings were also allocated to purchase additional newspaper, radio and television advertising and improve public spaces on the campus to attract prospective students and their parents. The overall results of these initiatives were increased enrollment and a drop in the housing vacancy rate. Both results were goals identified by Rozewski and Dennis at the outset of their efforts to reallocate resources.
Nevertheless, CWA suggests an adverse inference be drawn from the manor in which DeLoitte and Touche, the consultants, conducted the study, e.g ., D'Arcy as director of housing was not initially interviewed. It asserts Rozewski gave specific instructions to the consultants not to interview D'Arcy. It contends D'Arcy's 1995 and 1996 union activity motivated the University to exclude her from the interview process which eventually recommended removing custodial/maintenance supervisory responsibility from the housing operation and D'Arcy. This inference is too speculative, illogical and unsupported by the evidence.
No credible facts were introduced to establish the consultants were given specific instructions to exclude D'Arcy from the process. The consultants initially interviewed key individuals who had hands-on experience with the work being studied. They interviewed D'Arcy's assistant manager who was responsible for supervising the day-to-day functions of the housing custodial/maintenance staff. They did not interview D'Arcy's supervisor, Riggs, nor did they initially interview D'Arcy. Nevertheless, after D'Arcy contacted the consultants and asked to be interviewed, she was interviewed.
Rozewski denied giving the consultants a list of individuals to interview or not to interview.
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However, even if Rozewski ,had given DeLoitte and Touche a list of employees to interview excluding D'Arcy's name, and even if he was mistaken in excluding her, there is no evidence that his decision was rooted in union animus or hostility to D'Arcy's union activities.
Moreover, there is no evidence that the consultants' recommendations were tainted by union animus. D'Arcy was not the only individual impacted by the consultant's recommendations. Although the consultants identified the housing and physical plant custodial/maintenance functions as operational redundancies, redundancies were also identified in the campus services office. Rozewski concurred. Specifically, the reorganization resulted in the campus services office being eliminated and its director and a clerk laid off. Moreover, the recommendation to merge the housing physical plant custodial/maintenance staffs was not unique and mirrored the structure prior to 1993. Both actions, e.g ., eliminating the campus service office and removing the custodial/maintenance staff from housing, resulted in the operational savings needed by Rozewski to achieve the goals of enhancing academic initiatives and increasing enrollment. This was the task assigned to DeLoitte and Touche when it was retained to conduct the study on the Camden campus. There is no indication in the record the consultants' study was initiated and designed to remove the custodial/maintenance function from D'Arcy's supervision to retaliate against her for her union leadership or to send a message to other employees to avoid union activities.
Finally, CWA asserts the manner in which the reorganization was effectuated is evidence of hostility to D'Arcy's union activities. Specifically, it contends Rozewski's "communication plan" was not followed because D'Arcy never had an opportunity to meet with her staff to discuss the changes before the police and locksmith arrived to change locks on the outside building doors, and before the
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employees were informed by the director of physical plant in a general meeting. D'Arcy did not authorize the lock change and was not given a key to the outside doors until she asked for one several weeks later. Finally, D'Arcy could not understand why Mickelson was denied access to the housing unit after he was told of his layoff and asked to leave immediately. She felt his layoff was different from others being handled that day.
This reorganization was the first major undertaking of its kind in twenty years on the Camden campus. Assuming it could have been handled in a more efficient and sensitive fashion, there is nothing to indicate any action was taken because of D'Arcy's union activities. The locks to her personal office were not changed. The outside building locks were changed, but are only significant at night when the buildings are locked. Even then, guards are on duty 24-hours to open doors for authorized personnel. D'Arcy was never denied entrance. As to the handling of her Assistant Manager Mickelson's layoff, there is no inference to be drawn between it and D'Arcy's protected activities. The personnel action taken against Mickelson is not an adverse personnel action imputed to D'Arcy. In any event, Mickelson was subsequently employed by Rutgers in another position on the New Brunswick campus.
Conclusion as to D'Arcy
Based on the foregoing, I do not find evidence of hostility or animus to D'Arcy's union activities. Moreover, the actions complained of were taken for legitimate non-pretextual reasons. Accordingly, there is no violation of 5.4a(3) or derivatively (1) of the Act as to D'Arcy.
Beverly Tarter
Beverly Tarter, like D'Arcy, engaged in CWA organizing efforts and was, therefore, engaged in protected activities in 1995. There is no indication Tarter was involved with the brief 1996 second
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campaign. Norman, Otzenberger and her boss, Director of Graduate and Professional Admissions Donald Taylor were aware of her activities. In June 1996, Tarter was informed by Taylor, that as the result of budgetary cutbacks her position was being reduced from twelve months to ten months. Taylor, however, was able to delay the implementation of the reduction until September 1, 1997.
CWA contends that the reduction in position was in retaliation for Tarter's organizing activities. It asserts the University's reasons for the reduction were pretextual. In support of this contention it maintains Tarter was the lead minority recruiter. It asserts reducing her position was illogical when 1994 remarks by President Lawrence regarding minority achievement garnered negative publicity making minority recruitment more vital and difficult. Also, it argues that if the position was reduced for legitimate budgetary reasons, why did Taylor tell Tarter even if money were restored to the budget, her twelve-month position would not be restored. CWA further contends Tarter was not interviewed or appointed to a position as law school admissions director because of the exercise of her protected activities.
Rutgers disagrees and asserts Taylor's actions were taken for non-pretextual legitimate business reasons. The University contends Taylor harbored no hostility or union animus to Tarter's involvement with the CWA campaign. His statements regarding the likelihood of restoring Tarter's position even if money became available, was not a "smoking gun" indicating the budget cut was pretextual. It was merely an attempt by Taylor to prepare Tarter to accept that the reduction was not a short term situation but a long term reality. Rutgers also contends Tarter's performance as a minority recruiter or her job performance generally are not at issue. University-wide directives to cut department budgets impacted employees across the board. Finally, Rutgers asserts Tarter's claims are
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untimely because Tarter received notice of the reduction in her position more than six months before the filing of the charge. It contends the time, for purpose of determining the statute of limitations, is calculated from the notification date of an adverse personnel action not the date on which the adverse action occurs.
The Statute of Limitations
Rutgers asserts Tarter knew from her discussions with Taylor on June 19, 1996, that the decision to reduce her position was final for the foreseeable future. She understood Taylor's statements to mean the decision was a "done deal." Therefore, Rutgers argues, the operative event was that unequivocal notification.
CWA disagrees. It contends the charge is timely because it was filed within six months of the implementation of the decision to reduce Tarter's position - September 1, 1997. It asserts the actual reduction in Tarter's position is the adverse personnel action, not the notification.
The Act requires that an unfair practice charge must be brought within six months of the alleged unfair practice. N.J.S.A. 34:13A-5.4c states:
. . . no complaint shall issue based upon any unfair practice occurring more than 6 months prior to the filing of the charge unless the person aggrieved thereby was prevented from filing such charge in which event the 6-month period shall be computed from the day he was no longer so prevented.
In application, the statue of limitations period normally begins to run from the date of some particular action, such as the date the alleged unfair labor practice occurred, provided the person(s) affected thereby are aware of the action. The date of the action could be the date an action is announced and/or the date an action is implemented. The action date is known as the "operative date," and the six-month limitations period runs from that date. Therefore, in order to be timely, a charge must
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be filed within six months of the operative date. Charges and amendments filed past that date are generally untimely. Two exceptions to timeliness requirements are (1) tolling of the limitations period and (2) a demonstration by the charging party that it was "prevented" from filing the charge prior to the expiration of the period.
The standard for evaluating statute of limitations issues was set forth in Kaczmarek v. N.J. Turnpike Auth., 77 N.J . 329 (1978). The Supreme Court explained that the statute of limitations was intended to stimulate litigants to prevent litigation of stale claims, but it did not want to apply the statute strictly without considering the circumstances of individual cases. Id . at 337-338. The Court noted it would look to equitable considerations in deciding whether a charging party slept on his rights. The Court still expected charging parties to diligently pursue their claims.
Here, there is no claim CWA was prevented from filing its claims on behalf of Tarter before December 31, 1997. The issue is whether the operative event triggering the running of the six-month period was the notification of the reduction in Tarter's position (June 19, 1996) or the date Tarter became a ten-month employee (September 1, 1997). If it is the former, the claims as to Tarter are untimely and must be dismissed.
In Warren Hills Reg. Bd. of Ed., P.E.R.C. No. 78-69, 4 NJPER 188 (& 4094 1978), the Commission considered a timeliness claim regarding a charge asserting unilateral implementation of split sessions for the seventh grade. The charge alleged violations of 5.4a(1) and (5) of the Act. The Commission upheld the Hearing Examiner's dismissal of the charge as untimely but held that the operative event was not the Board's decision to institute the split session but the implementation of the decision. Similarly, in Jamesburg Bd. of Ed., P.E.R.C. No. 80-56, 5 NJPER 496 ( & 10253 1979), the Commission considered the timeliness of a charge alleging unilateral change in a school calendar. The Commission found the charge was timely because it was filed within six months of the first day of school when the change was implemented. It determined the statute of limitations may run from the date a change is announced or from the date it is implemented. See also Monmouth Cty. Sheriff, H.E. No.
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90-36, 16 NJPER 156 ( & 21063 1990) (where a Hearing Examiner rejected the employer's timeliness argument finding the six-month statute of limitation may run from the date announcing the change in automobile assignment policies or the date automobiles were actually assigned.)
Rutgers distinguishes Warren Hills for several reasons: (1) the underlying claim in Warren Hills involved failure to negotiate terms and conditions of employment not discrimination for the exercise of union activities; (2) the timeliness language in the decision was dicta because the Commission had already determined the underlying issue was non-negotiable and the Commission's decision was premised on the decision/impact dichotomy subsequently abandoned in Bd. of Ed. of WoodstownPilesgrove v. Woodstown-Pilesgrove Educ. Assn ., 81 N.J . 582 (1980); and (3) no subsequent Commission decisions make the distinction between notice and implementation for purposes of determining timeliness.
Tarter's 5.4a(3) claim asserts a violation based on the reduction in her position. Whether the June 1996 notification of the reduction had a chilling effect and supports a separate claim of violation under 5.4a(1) is not the issue. The reduction in position is a discrete act which gives rise to a separate and distinct charge alleging discrimination in retaliation for the exercise of protected rights under 5.4a (3) and derivitavely (1) of the Act. Because the reduction in position represents a discrete personnel action, it is not an impact arising out of the notification. Therefore, the Woodstown-Pilesgrove analysis is inapposite.
Rutgers cites several cases in support of its contention that notification of an adverse action controls in determining timeliness of claims. However, these cases support that the personnel action alleged to violate the Act is the operative event. For instance, in several of the cited cases, the charge alleged a violation of a union's duty of fair representation. The Commission found the operative event was the date the employee was notified of the union's refusal to represent the employee. State of New Jersey (Div. on Civil Rights), P.E.R.C. No. 94-116, 20 NJPER 273 (& 25138 1994), aff'd 21 NJPER 319 ( & 26204 App. Div. 1995), certif. den. 142 N.J. 571 (1995); City of Newark, D.U.P. No. 96-1,
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21 NJPER 294 (& 26187 1995).
Similarly, in City of Paterson, D.U.P. No. 96-6, 21 NJPER 310 ( & 26197 1995), although the operative event was the notice of termination not the actual termination, the gravamen of the charge was the employer's improper notification procedures and the refusal of the union to represent the employee. Both the notification and refusal to represent took place on the same date. The charge was filed more than six months from that date. Similarly, in State of New Jersey (Zamensky), D.U.P. No 98-33, 24 NJPER 247 ( & 29118 1998), aff'd P.E.R.C. No. 98-152, 24 NJPER 338 (& 29159 1998), using the latest date possible in which the employee knew the State was intending to terminate the employee, the Director determined the operative event was when the employee received the hearing officer's report terminating him from employment. Finally, in Tp. of Lumberton, D.U.P. No. 2000-4, 25 NJPER 391 ( & 30168 1999), the charge asserted the Township refused to rescind the employee' resignations in violation of 5.4a(1) of the Act and the union breached its duty of fair representation. The Director found the operative events were the Township's refusal to rescind and the union's refusal to provide assistance.
These cases support that the cause of action accrues when the event triggering the violation occurs. Depending on the violation asserted, notice of an intended action may be sufficient to establish a claim. Recently, in National Railroad Passenger Corp. v. Morgan, U.S. , 88 FEP cases 1601 at 1606-1607 (2002), the United States Supreme Court addressed the continuing violation doctrine. The Court explained that:
. . . discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act.
Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable "unlawful employment practice."
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The reduction in Tarter's position occurred on September 1, 1997. The charge was filed on December 31, 1997. Tarter's claims are timely.
The SROA Budget Cut
Having found that Tarter's charge was timely, I, nevertheless, conclude that Rutgers did not reduce her position because of her exercise of protected activity.
The SROA program President Lawrence implemented in 1996 required each department to cut a percentage of its budget and return the monies to central administration. The office of graduate and professional admissions together with other University departments was notified in the spring of 1996 that its budget for the 1996/1997 academic year needed to be reduced by three percent to accommodate the President's SROA program. Three percent of the graduate and professional admissions budget represented approximately $21,000.
This was not the first budget cut Taylor had faced in the office. Throughout the 1990's, a series of budget cuts resulted in reduced staff size through layoffs and reductions in positions. In the spring of 1996 when Taylor was notified of the SROA budget cut, operating expenses were already at bare bones. He and Associate Director Michael Holcomb looked to personnel changes to re-coop the dollars. On April 30, 1996, Holcomb recommended three options for reducing the overall budget by three percent while preserving the operating budget, including reducing Tarter's position to ten-months. There is no evidence Holcomb was aware of Tarter's CWA activities or, if he was, that he was hostile to them.
Although Taylor was aware of Tarter's union activities, his actions are not consistent with hostility. He agreed with the University's "Vote No" stance during the CWA election, but his right to do so is protected as free speech. Black Horse Pike . Tarter confirmed Taylor never expressed any concern to her about her union activities. Nor did Taylor discuss them with anyone in central administration or Holcomb. During the SROA budget cuts, Taylor first attempted to avoid having to make them by contacting central administration. When his attempt was not successful, Taylor sought
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and gained approval to soften the blow to Tarter by deferring the action for one year. He also approved her request to work a reduced work week instead of taking off the months of July and August. He then changed staff meeting days to accommodate her day off and ensure she was not excluded from administrative staff discussions. None of these actions support that Taylor was hostile to Tarter's union activities.
Also, there is no direct evidence of hostility that Taylor warned Tarter to cut back on her Assembly grievance chair activities. Taylor denied making such a warning. There is no independent evidence to support Tarter's testimony. Additionally, the 1997/1998 performance appraisal was not admitted into evidence. It cannot be used to support this contention. In any event, there is nothing in the appraisal to support CWA's assertion regarding the warning.
Similarly, Taylor's June 1996 discussion with Tarter about the finality of his decision to reduce her position and his contemporaneous notes of that meeting are not evidence of hostility or union animus. Taylor's statements reflected the reality of 1990's budget cuts throughout the University and in his department. Taylor did not want to hold out false hope to Tarter that things would turn around because of his experience. He knew that even if resources became available, her position would likely not be restored. Subsequent events proved Taylor correct in his assessment. When an administrative assistant retired in 1998 and was replaced by a lower salaried employee, the savings were returned to central administration and reallocated for other uses. The memorandum is not in conflict with the stated reasons for Taylor's decision to reduce Tarter's position. It is not a "smoking gun."
Finally, there is no evidence that Taylor's decision to meet the SROA budget by reducing Tarter's position and laying off a senior clerk was pretextual. His reasoning for choosing Holcomb's first and third recommendations was logical. Reducing Tarter's position and laying off a senior clerk produced the revenue needed to meet the SROA budget cut. There is no evidence that Taylor's decision was based on any consideration of Tarter's union activity or that it was not based on the reasons professed.
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As to CWA's contention that reducing Tarter's position conflicted with the University's minority recruitment effort and was evidence Taylor's decision was pretextual, it offered no evidence that the SROA program is in conflict with University's strategic plan or that minority recruitment has suffered. Minority recruitment was not an isolated concern of admissions. For instance, it was also addressed through housing, faculty and staff recruitment. Presumably, the SROA initiative to divert department administrative resources generally to enhance academic programs impacted Rutgers ability to attract both minority and non-minority students. That decision was an educational policy decision. Whether or not the decision yielded the desired results is not relevant. The evidence supports the SROA budget cut was not done to achieve a particular goal in the office of graduate and professional admissions. No employee was immune from the impact of the SROA budget decisions nor was Tarter the target because of her CWA efforts.
The Law School Position
CWA maintains Tarter was not interviewed or chosen for the position of law school admissions director in 1998, because of her union activities.
There is no evidence on the record of who the decision-makers were with respect to this position, whether they were aware of Tarter's union activities or were hostile to them. Tarter was one of at least100 applicants for the job. She had applied for jobs at the University before her involvement with the 1995 CWA campaign for which she was qualified and did not receive interviews or appointment. The application for the position is too remote in time to support an inference of hostility. Tp of West Orange, supra . Consequently, there is no basis to conclude that Tarter was not appointed for this position or interviewed in retaliation for her union activities.
Conclusions as to Tarter
Based on the foregoing, I do not find evidence of hostility or animus to Tarter's union activities. Moreover, the actions complained of were taken for legitimate non-pretextual reasons. Accordingly, there is no violation of 5.4a(3) or derivatively (1) of the Act as to Tarter.
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Scott Randolph
Scott Randolph became involved with the CWA campaign in the spring of 1995. Randolph attended meetings with other organizers and wrote articles for the CWA newsletter and allowed his name and picture to be used. He also spoke to his staff both individually and in groups during lunch hours around his campus. There is no evidence that his efforts on behalf of CWA continued after the December 1995 election. His efforts on behalf of CWA are protected activities under Bridgewater.
CWA maintains Randolph was laid off in May 1997 by his boss, Associate Vice-President for Enrollment Corinne Webb, in retaliation for his activities in the CWA campaign. It asserts Webb was aware of Randolph's union activities because she was a member of the University's focus/advisory groups and because Randolph kept CWA literature in his office. CWA, contends an inference should be drawn from Randolph's "glowing thirty-year career," his merit award for 1995/1996 and his role in minority recruitment, an issue vital to the University's strategic plan, that Webb's professed reasons for the reorganization in the office of undergraduate admissions were pretextual. Additionally, it asserts that the manner of Randolph's layoff (he was given no advance notice and only six hours to clear out his desk) demonstrated hostility to his union activities. Finally, CWA maintains Randolph was not interviewed for or appointed to other positions, including the position of law school director in 1998, in retaliation for his union activities.
Rutgers contends Webb had no knowledge of Randolph's union activities and was not hostile to them. His immediate supervisors (Pullen and Holohan) were neither aware of nor hostile to Randolph's union activities when they disciplined him and gave him an unsatisfactory performance appraisal in 1997. I find that Webb undertook the 1997 reorganization and laid off Randolph for legitimate, non-discriminatory reasons. Randolph's lay off was not vital to the minority recruitment effort. Rutgers' minority recruitment has increased since Randolph's departure. Webb's reorganization freed up resources to achieve the University's admissions goals.
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Webb's Awareness of Randolph's Protected Activity
During the 1995 CWA campaign, Webb was associate provost on the Rutgers Camden campus. She only came to New Brunswick as associate vice-president of enrollment management in September 1996. Webb was generally aware of the 1995 CWA campaign and attended one meeting with the University's outside consultants who informed her and other managers what they could and could not do during the campaign. However, Webb was not aware of any role Randolph played in the CWA campaign. She did not receive or see any of the CWA mailings. There is no evidence Randolph campaigned on the Camden campus, and, Randolph never discussed his involvement with the CWA with Webb. Indeed, according Randolph, he never spoke to Webb during the eight or nine months she headed his office until the meeting in May 1997 when he was informed of his lay off.
CWA contends Webb was aware of the union literature in Randolph's office. Webb, however, never entered Randolph's office. There is no evidence where the CWA material was kept or if it was in plain view.
CWA also asserts Webb was aware of Randolph's activities because she was a member of the focus/advisory groups after the 1995 election. However, even if Webb had participated in these groups, CWA failed to prove that membership gave her access to information about Randolph and his union activities. The focus/advisory groups were formed after the election by the University to identify issues of importance to APS employees. There is no evidence these groups discussed specific union supporters.
Hostility to Randolph's Union Activities
Even if Webb was aware of Randolph's union activities, there is no evidence she was hostile to those activities.
CWA contends Webb's lack of experience in admissions and "quick" assessment of the undergraduate admissions office are evidence her decision to eliminate Randolph's position was pretextual. CWA's focus is misplaced.
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Webb's abilities are not at issue, only her motivation in eliminating Randolph's job. State of New Jersey (Glassboro State College), P.E.R.C. No. 93-31, 18 NJPER 496 (& 23228 1992), aff'd 20 NJPER 402 ( & 25203 App. Div. 1994).
There is no evidence direct or circumstantial that Webb's restructuring and consequent layoff of Randolph were motivated by union animus. Webb had legitimately decided to eliminate a position and had to choose between Randolph and Wright. Webb chose to layoff Randolph instead of Wright. Webb considered length of service but weighed their relative performance and found Wright to be the stronger employee. Wright had held the title of coordinator of multi-cultural recruitment for six years and had received a glowing performance appraisal for 1996/1997 from both Pullen and Webb. Prior to Webb's tenure, Wright had received glowing performance appraisals for the previous three years.
Randolph's performance record was not as good. His appraisals between 1993 and 1996, prior to Webb's arrival, were inconsistent. The appraisals contained both praise and criticism.
In 1996/1997, unlike Wright, Randolph received an unsatisfactory performance appraisal from Webb. The appraisal reflected significant difficulties Randolph experienced with his immediate supervisors, Pullen and Doris Holohan. Pullen especially noted Randolph's attitude which she felt impeded his ability to adapt to changes in admissions and affected his co-workers. Two weeks before the appraisal Holohan issued a written warning noting Randolph's continuing inability to follow certain admissions guidelines and failure to meet a deadline for notifying candidates of final application decisions. There is no evidence, nor does CWA maintain, that Pullen or Holohan were either aware of Randolph's union activities or were hostile to them.
In addition to the Pullen/Holohan difficulties, Randolph had embarrassed Webb in front of her boss, Dr. Nancy Winterbauer, when Webb invited her to visit the office. When it came time to chose between Wright and Randolph, Webb considered her observations as well as his 1996/1997 performance review. She chose to retain Wright. I find that choice was not based on Randolph's exercise of union activities.
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Layoff Guidelines
CWA maintains that under University layoff guidelines which require every reasonable effort be made to place employees in other positions within areas for which they are qualified, Webb should have considered Randolph for the downgraded admissions officer I and II positions created as a result of the restructuring.
Webb had many legitimate reasons to support the layoff decision, including her own observations of Randolph's demeanor (at times "very loud, opinionated and difficult" (20T56)) and her assessment of his performance which was supported by the observations of his immediate supervisors. In any event, the two downgraded admissions officer positions were not funded at the time of Randolph's layoff and could not have been filled at that time. Subsequently, when they were posted, Randolph did not apply.
Minority Recruitment
CWA contends Randolph's layoff was pretextual because he was a minority recruiter and minority recruitment was a priority after President Lawrence's 1994 remarks about minorities and testing. It asserts the layoff of an experienced minority recruiter at this time was illogical.
However, the record shows that Webb's restructuring of the office of undergraduate admissions, and the layoff of Randolph and Hodos has not negatively impacted that effort. Indeed, Rutgers' increase in applications has exceeded the rate of high school growth by 20 percent and the applicant pool has increased from 23,000 to 29,000.
The Layoff
CWA contends the manner in which Randolph's layoff was carried out manifests hostility to his union activities. Randolph learned for the first time on May 23, 1997, that he was being laid off. He was given a few hours to pack up his office and leave. CWA also asserts Randolph was treated differently than Hodos, the other professional employee, who was given advance warning of the
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personnel action.
On May 23, 1997, Hodos and Randolph were notified by Webb that their positions were being eliminated and they would be compensated for the next 125 working days as per University regulations and their length of service. They were both given until 4:30 p.m. to remove their personal belongings. The letters given to Hodos and Randolph explaining the layoff decisions were identical. It was suggested they were relieved of their positions immediately in order to devote their full time and energies to working with the division of personnel concerning other employment opportunities. Hodos had learned at his April 1997 performance appraisal, that his job was going to be eliminated because Webb knew he was considering retirement and wanted to confirm whether it would be necessary to send him a layoff notification.
In Mantua Tp., P.E.R.C. No. 84-151, 10 NJPER 433 ( & 15194 1984), the Commission adopted a Hearing Examiner's decision finding the Township unlawfully laid off an employee for organizing activities. The Township acted four days after a PERC election, laid off the employee instantly with severance pay contrary to Township's practice in any other layoff and refused to grant the employee the benefit of re-employment personnel policy contained in the Township's code.
Here, unlike Mantua , although it was not usual at Rutgers for a career employee to be given short notice upon layoff to leave the premises, it was not uncommon. In her first few weeks at New Brunswick, Webb asked an employee who had resigned to leave by the end of the day. Former Associate Director of Personnel Services David Waldman testified the decision as to how long an employee was to remain on the job was done on a case-by-case basis. When Webb effectuated the restructuring in undergraduate admissions, she wanted to move forward as rapidly as possible to meet the enrollment goals she was charged with improving. Randolph was not singled out. Hodos, who had more seniority, was also asked to leave immediately and clear out his personal belongings. Although Hodos had been informed during his April performance appraisal his position was being eliminated, there is no evidence that he was aware when it would take affect or how quickly he would be asked to
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leave. The unionized support staff were given the same short notice their positions were eliminated as Randolph and Hodos. Although Randolph's treatment may have been insensitive, there is no evidence it was motivated by his union activity.
Additionally, unlike Mantua , Randolph was given all benefits he was entitled to under University regulations including compensation for 125 working days in accordance with his 25-years-plus of employment as well as use of the services of the division of personnel in identifying job opportunities and securing other employment. There is no evidence Rutgers refused to grant Randolph the benefit of any rules or regulations governing layoff and re-employment.
Finally, in Mantua , the adverse personnel action occurred four days after the protected activity, a PERC election. Here, Randolph's layoff occurred more than a year after his involvement in the CWA campaign.
Application for other Positions
CWA contends Randolph applied for other positions at Rutgers and was not interviewed or appointed to them in retaliation for his union activities.
There is no evidence in the record to indicate who made the decisions regarding interviews and appointments, whether any of the decision-makers were aware of Randolph's union activities or harbored animus toward him. Consequently, I find no basis to conclude Randolph was not interviewed or selected for other University positions in retaliation for his organizing efforts on behalf of CWA.
Conclusions as to Randolph
Based on the foregoing, I do not find evidence of hostility or animus to Randolph's union activities. Moreover, the actions complained of were taken for legitimate non-pretextual reasons. There is no violation of 5.4a(3) or derivatively (1) of the Act as to Randolph.
Jane Chepitch
Jane Chepitch was a 30-year employee with Rutgers prior to her retirement in 1998. For a
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decade prior to her retirement, she held the position of business manager on the Newark campus of the Faculty of Arts and Sciences (FASN). She, like D'Arcy and Tarter, was active in the Administrative Assembly and, in the spring of 1995, became involved in organizing on behalf of the CWA. Her involvement constituted protected activity under Bridgewater.
Norman and Otzenberger were aware of Chepitch's union activities through her participation in the Assembly and discussions with her. Dean Hosford, Chepitch's boss at the FASN, was also aware of Chepitch's 1995 union efforts because they knew each other for 20 years, lived in the same community, occasionally commuted together and spoke about it casually. However, he was not aware of her continuing efforts in the second 1996 RAPSS campaign. There is no evidence he expressed any concern to Chepitch about her union activities or her views generally on unionization. FASN Associate Dean for Administration Gerald Warshaver was also aware of Chepitch's views about unionization during the 1995 CWA campaign but did not know the specific role she played in the organizing effort. Gary Roth, who together with Associate Dean Jonakait, supervised Chepitch in 1996 was aware generally there was a CWA campaign although it is unclear whether Roth was aware of Chepitch's role since he did not work with her until the spring of 1996. There is no evidence former FASN Associate Dean of Instruction G. Miller Jonakait, Chepitch's immediate supervisor, was aware of her union activities.
Unlike D'Arcy, Tarter and Randolph, Chepitch's name and picture do not appear in any CWA literature. Chepitch was involved with the brief second campaign because she handed out RAPSS brochures to interested individuals in her office and building. She was not the Newark campus coordinator listed in the RAPSS pamphlet distributed after the election. Chepitch's union activity ended sometime in the summer of 1996.
CWA contends Chepitch's job was eliminated in June 1997 and she was not interviewed or appointed to other University positions between 1995 and 1997 because of her organizing efforts on behalf of CWA.
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Rutgers asserts Chepitch lacked the skills necessary for modern business practices. I find Dean Hosford and Associate Dean Jonakait acted for legitimate business reasons in reorganizing the business functions in the office of the dean in order to modernize the business practices. Hosford was not hostile to Chepitch's organizing efforts, and Jonakait was unaware of her union activities. As to other positions she applied for, Chepitch was given more assistance than other employees to secure positions. She lacked the minimum requirements for many of the positions for which she applied. Finally, central administration was not hostile to Chepitch's union activities: Norman found Chepitch another job but Chepitch left the University anyway.
The Reorganization
CWA asserts the timing of events regarding the reorganization of the FASN business office lends itself to an inference of hostility because Chepitch was involved in organizing efforts within a year of the elimination of her job. It cites Essex Cty. Sheriff's Dept., P.E.R.C. No. 88-75, 14 NJPER 185 ( & 19071 1988). Rutgers also cites Essex Cty ., but relies on it for the proposition that the events regarding Chepitch are too remote in time to draw an inference of hostility.
In Essex Cty ., ten days after filing an "Explanation of Grievance" of which the chief and the rest of the department was aware, charging party was reassigned and ordered to report for training at an irregular time. The training was not in conjunction with his regular duties but was ordered for "attitudinal motivation." Here, Chepitch's job was eliminated in June 1997, approximately a year after she ceased her RAPSS activity and more than a year after the 1995 CWA election. I do not draw an adverse inference of hostility from the timing of those events. See also Rutgers, the State University , P.E.R.C. No. 2001-38, 27 NJPER 91 ( & 32034 2001) (anti-union animus inferred from layoff three days after favorable grievance decision awarded employee promotion). Cf. Tp. of West Orange, P.E.R.C. No. 99-76, 25 NJPER 128 (& 30057 1999) (a remark by a deputy chief within a year of charging party's protected activity was too remote in time to support a claim for constructive discharge); Gloucester Cty. College , P.E.R.C. No. 97-73, 23 NJPER 44 ( & 28030 1996) (no violation
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found where adverse action occurred 11 months after sarcastic remark about charging party's union activity); Middlesex Cty. Voc-Tech, P.E.R.C. No. 84-135, 10 NJPER 347 ( & 15160 1984) (several years between protected activity and failure to promote and absence of other evidence establishing nexus between protected activity and adverse action was insufficient to establish unlawful discrimination).
CWA also contends the reorganization resulting in the elimination of Chepitch's position as business manager was concocted to accomplish her removal. It asserts the purported rationale for the reorganization, e.g ., the need to computerize to do multi-year budget projections and Chepitch's inability or unwillingness to adopt modern business practices, was pretextual. It relies on the fact Chepitch's evaluation's contained no negative remarks and she was never warned her performance was a concern until after the reorganization plan was well underway. If it was a concern, CWA contends, her supervisors should have followed progressive discipline. CWA also asserts she was never sent for training to assist her to meet performance standards. The evidence in the record does not support CWA's contentions.
Comments about Chepitch's computer skills and the need to up-grade them began in 1985. Her performance appraisal that year reflected the fact she needed additional training in computer usage and urged her to seek it. Again in 1987, she was urged to complete computerization of records tasks. In 1996, Associate Dean Tiger's performance appraisal (Tiger was replaced by Jonakait in the summer of 1996 as Chepitch's supervisor) noted Chepitch met performance standards adequately but cited as an area of improvement the need to address streamlining reporting systems and communication procedures relating to budget balances, commitments and available resources. Tiger noted that in the past there had not been a user friendly systematic flow of information. Tiger's comments were reflective of concerns she had over Chepitch's inability to provide her with computerized multi-year budget projections and what resources were available to plan courses for more than one semester ahead. Tiger did not seek to discipline Chepitch because Warshaver had advised her suggestions for
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improvement were an appropriate response to addressing work performance. Hosford also signed off on Chepitch's performance appraisal noting areas for improvement, such as establishment of improved systems and formats for financial reporting and the need to envision new strategies for managing resources. Her 1996 performance appraisal was a clear indication of expectations regarding computer skills and the need to improve reporting systems in the FASN dean's office.
Next, contrary to CWA's assertions, discussions concerning the business office and the functions of the business manager position pre-dated the 1995 CWA campaign. In the spring of 1995 before the filing of the CWA petition, although arguably during the time when discussions of unionization and card collection were occurring, Chepitch and her supervisor Associate Dean Tiger disagreed over the scope of Chepitch's job responsibilities and job description. Chepitch wanted her job reclassified to secure a higher salary. The reclassification did not occur because Tiger and Chepitch could not agree on a job description. CWA contends the failure to submit and support Chepitch's request for a job re-evaluation was in retaliation for her union activities. However, this was not the first time over the years Chepitch complained about her salary range. She had complained often over the years and her position had not been upgraded. There is no evidence that Tiger was aware of Chepitch's union activities at this time or was ever hostile to them.
CWA contends Chepitch was not given training assistance or opportunity to improve her performance. It suggests I infer hostility from management's failure to do so. This inference is not warranted. The evidence establishes that Chepitch had opportunities over the years to acquire computer training and other job training. Rutgers offered such training regularly and free of charge to employees. Chepitch was eligible to attend, did not need Hosford's permission to do so nor was such permission denied. Chepitch was also eligible to attend training outside Rutgers and was permitted to do so. For instance, in 1996, Chepitch was sent to the Chubb Computer Services for training in word processing functions. This training was recommended by Roth and approved by Jonakait. Despite this training, Chepitch persisted in producing budget figures on ledger paper as opposed to computer
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spreadsheets.
The evidence also establishes that over the years her supervisors approved most requests Chepitch made to go for general job training. The only exception was when Hosford denied her request to attend classes toward her MBA during work hours. His denial was consistent with office policy requiring employees to take educational benefit classes (classes available tuition-free for Rutgers employees) during non-working hours. I find that Chepitch's failure to acquire computer skills to modernize business practices at the FASN was not because she did not have the opportunity to do so.
CWA maintains that although the reorganization did not take place until 1997, because discussions occurred beginning in 1995, the decision to reorganize was concocted to accomplish the result of removing Chepitch because of her union activities. The evidence does not support this contention.
The actual decision to reorganize was not made by Hosford until late spring of 1997. It was triggered by a combination of factors none of which related to Chepitch's union activities. In 1996, Hosford decided to retire. Because of the difficulties experienced by himself and Tiger in getting budget projections during the prior year, he was particularly concerned Chepitch's outmoded business practices would create problems for his successor. Hosford's years of experience at FASN permitted him to "fly by the seat of his pants" ( see finding of fact no.190). His successor did not have that experiential safety net.
Also, Hosford had attempted to assist Chepitch by bringing Gary Roth to the FASN as associate dean for instructional resources. Roth was a long-time administrator with experience in basic office software, word processing, spread sheets and data bases. Hosford hoped Roth would assist Chepitch in changing budget management systems at FASN. Roth had extensive discussions with Chepitch about modernizing office systems and how to accomplish it. By October 1996, Roth was frustrated in his attempts to have Chepitch computerize the accounts and gave her a written warning about her delays in implementing the computerization process. The warning was pulled when Associate
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Dean Jonakait met with Chepitch and agreed to pull the warning when Chepitch disagreed with Roth's letter. There is no evidence that Roth acted out of hostility to Chepitch's union activities. He was frustrated with her lack of performance and documented it.
Also triggering Hosford's decision to reorganize and eliminating Chepitch's position, was the arrival in the summer/fall of 1996 of Tiger's replacement, Associate Dean Jonakait. Unlike Tiger and Hosford who had backgrounds as professors in the humanities department and no particular experience with computers, Jonakait was a scientist and particularly concerned with having precise information before making decisions about the allocation of funds. When Jonakait came to FASN, she immediately recognized that this information was not available. She consulted with Hosford and Roth and spoke to Chepitch about her (Jonakait's) expectations for a planning budget and computerization needs. However, when Jonakait observed Chepitch months later still using account ledgers instead of computer spreadsheets, she concluded Chepitch was either unable or unwilling to implement the computer training which Jonakait knew she had gotten at Chubb.
By January 1997, Jonakait and Hosford discussed letting Chepitch go. There is no evidence Jonakait had any knowledge of Chepitch's union activities or discussed them with Hosford or Roth or acted out of hostility to them. She, like Roth and Hosford, was frustrated by Chepitch's failure to modernize FASN business practices.
Chepitch's Attitude
CWA contends Chepitch should have been disciplined if she was not meeting performance standards. However, Roth had attempted to do so. Jonakait and Hosford determined Chepitch's problems were attitudinal. Progressive discipline was not appropriate to correct her attitude. Although CWA asserts Chepitch was not notified of concerns about her performance except for Roth's warning, the evidence supports that Tiger, Roth and Jonakait communicated their concerns to her about getting budget information for future planning.
Nevertheless, even if Jonakait and Hosford were incorrect in their assessment that Chepitch's
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problems were not appropriate for progressive discipline, misapplication of the progressive discipline policy does not by itself establish that anti-union animus motivated the reorganization. Hosford's decision to retire, Tiger and Chepitch's difficulties in 1995/1996, Roth's inability to improve Chepitch's performance and Jonakait's assessment of FASN business practices and her inability to deal with Chepitch resulted in the reorganization decision. Union animus did not play a role.
A theme running through Charging Party's case is that Chepitch was a highly successful career employee, having received numerous promotions over the years and that of course, if it was made clear to her what Hosford's, Jonakait's and Roth's expectations were she would have acquired the necessary skills and utilized them. Rutgers asserts that Chepitch's confrontational and abrasive attitude explain why she refused to acquire the necessary skills to function in a computerized office environment. Numerous witnesses including Norman, Warshaver, Jonakait and Roth described Chepitch as hard working and diligent, but used the term abrasive to describe her work attitude. Norman, in particular, recalled his first meeting with Chepitch a decade earlier, because she complained to him that only employees who do what their bosses want get merit awards. This seemed to him an obvious result of meeting a boss' expectations. Also, Clement Price, one of Chepitch's faculty job references who recommended her for jobs both inside and outside the University, was not surprised when Hosford expressed to him that Chepitch seemed to be unwilling to acquire the necessary computer skills because "[K]nowing Jane Chepitch as I do, if she didn't want to acquire skills she would not" (15T21). Another witness, Jeff Wilson, who was on an interview committee and recommended Chepitch for that position as well as others, told Chepitch that her reputation for abrasiveness was a drawback to her finding another position. Additionally, Marie Melito, testified that she stopped attending business manger's meetings because Chepitch was defensive, argumentative and turned the meetings into gripe sessions. I credit Melito's testimony.
These witnesses were sequestered and testified months apart. Their observations comported with my own observations of Chepitch's demeanor on the stand. She was often confrontational,
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argumentative and evasive on cross examination. In several instances, I discredited her testimony because witnesses who would otherwise be expected to be favorable to her, e.g ., Price and Wilson, who acted as job references for Chepitch, denied making statements Chepitch attributed to them.
The evidence supports that Chepitch was told her job expectations, but either because she could not or would not adopt modern business practices, Hosford decided to reorganize and eliminate Chepitch's position of business manager and create a new position of associate dean for resources and systems at a range 29 (Chepitch's range had been 26) with added responsibilities for computer systems management and development rather than deal with a seasoned employee who was set in her ways.
Associate Dean for Resources and Systems
CWA maintains that Chepitch was not allowed to compete for the newly-created position of associate dean for resources and systems. It also contends the person hired to fill that position, Richard DaSilva, was not able to implement certain computer programs and left after two years. It asserts the plausibility of the reorganization is called into question because DaSilva's replacement, Bernestine Little, does not have the responsibility for computer programing in her job description.
First, Chepitch was not prevented from applying for the position. She was notified by personnel in July 1997 when the associate dean for resources and systems position was posted. She waited until September to apply. By then, the position was filled.
Second, although DaSilva left after two years, he took another University position as associate dean in the office of student affairs. During his FASN tenure, he put into place a multi-year projection budget and designed a computer program to track part-time lecturers as well as initiating the implementation of a grants manager program, several of the responsibilities identified as the basis for his hiring. When Hosford retired, his replacement, Dean Diner, utilized the document prepared by DaSilva to provide an overall accounting of all FASN resources. When DaSilva moved to the office of student affairs, his replacement was not given responsibility for some of his computer functions because it was determined he was still available to do computer networking across the departments. However, Little
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was responsible for maintaining and improving computer systems DaSilva had put into place.
DaSilva was hired because of his extensive knowledge and experience with creating and maintaining computer network systems. Although he only stayed at FASN two years and his replacement does not create computer networking systems, the reorganization accomplished Hosford's and Jonakait's goal of providing a multi-year budget projection for Hosford's successor. There is no indication that Chepitch was prevented from applying for Little's position or that she possessed the skills to maintain the computer systems designed or implemented by DaSilva. The fact that DaSilva may not have completed certain tasks during his tenure or that Little does not have DaSilva's networking capabilities does not render the reorganization implausible or establish that the reorganization was "concocted" solely to get rid of Chepitch because of her 1995/1996 union activities.
The reorganization was too far removed in time to be considered a likely result of Chepitch's union activity.
Other Job Applications.
CWA contends Chepitch applied for 14 other positions at the University and was not interviewed and/or appointed because of her union activities. It asserts that the division of personnel was supposed to assist her but only went through the motions. The record does not support this contention.
CWA did not prove how Rutgers failed to assist Chepitch in finding another position. She was provided information on job openings, contacted after interviews and follow-up calls were made on her behalf to the hiring authorities in the various departments. The evidence demonstrates Chepitch was given as much assistance as other employees similarly situated, and, perhaps, more assistance because she made frequent telephone calls demanding it. There is no evidence of vacancies for which she was prevented from competing. Indeed, Jim Venner, the personnel counselor assigned to assist Chepitch, called her when the new associate dean for resources and systems job was posted in July 1997, but Chepitch did not respond to the posting until September 1, 1997. By then, Hosford had already
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offered the job to another candidate.
Venner warned Chepitch when she applied for positions that she was making her search more difficult by limiting herself to positions equal to or better than her range 26 business manager position - the higher the range, the fewer the positions with more competition for each. As a result, many of the positions Chepitch applied for had many applicants. Additionally, Chepitch lacked the basic requirements for many of the positions according to the job postings. For example, she applied for chemistry department administrator despite the requirement of basic knowledge in engineering or physical sciences. She also applied for the position of assistant dean/associate director AFC/EOF which required an advanced degree in counseling, education, social work or related field. Chepitch did not possess these degrees.
CWA contends Chepitch's job search in 1997 was different than she had experienced previously. However, there is no evidence that the application or interview processes were irregular. Both processes were controlled locally by the departments, not central administration. The decisionmakers varied depending on the department and the position applied for. Interview committees were made up of different individuals. There is no indication that anyone from central administration communicated with the department regarding Chepitch's candidacy for any position. Even if the interview or application process as defined in the University's guidelines was not adhered to in each and every instance, this does not establish that Chepitch's failure to secure another position was motivated by union animus. See Ocean Cty. Coll. and Corbett, et al ., P.E.R.C. No. 85-12, 10 NJPER 502 ( & 15630 1984), rev'd 204 N.J. Super . 24 (App. Div. 1985), certif. den. 102 N.J . 327 (1985) (misapplication of layoff and recall policy does not by itself establish union animus motivated the employer to deny re-employment).
There is no evidence to suggest the decision-makers for these positions, with the exception of the position of executive associate for Norman knew, of Chepitch's union activities. None, including Norman, were hostile to them. Regarding the executive associate position, Chepitch had unsuccessfully
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applied for this same position in 1992 before any of her CWA activities. When she re-applied in 1997, Norman explained to her he was taking a different approach to the position and hired someone from the University's auditing department. Chepitch had no auditing experience. There is no evidence Norman's explanation was pretextual.
Most importantly, when Norman learned from Chepitch that she was having difficulty finding another position, he found one for her. Even though the position was several ranges below her business manager position, he committed to maintain her salary for two years if not longer. Norman's actions are not consistent with union animus.
Chepitch's problems in securing other University positions were largely due to her own limited search in the types of positions she applied for, her lack of qualifications for many of the positions and the number of qualified applicants for each position. Although Chepitch, like Randolph and Tarter, believed she was qualified or overqualified for the jobs she applied for, this does not mean the persons hired were not qualified or the refusal to hire was motivated by union animus.
Conclusion as to Chepitch
Based on the foregoing, I do not find evidence of hostility or animus to Chepitch's union activities. Moreover, the actions complained of were taken for legitimate non-pretextual reasons. Accordingly, there is no violation of 5.4a(3) or, derivatively, a(1) of the Act as to Chepitch.
CONCLUSIONS OF LAW
The University did not violate 5.4a(3) or, derivatively or independently, a(1) of the Act with respect to its decisions to remove the custodial/maintenance responsibilities from D'Arcy, reduce Tarter's position from twelve months to ten months, layoff Chepitch and Randolph, and not interview or appoint Chepitch, Tarter or Randolph to other positions. Additionally, the University did not violate 5.4a(2) of the Act with respect to the formation and existence of the Administrative Organizing Committee of CWA Local 1031.
H.E. NO. 2003-2 300.RECOMMENDED ORDER I recommend that the Commission ORDER that the Complaint be dismissed.
Wendy L. Young
Hearing Examiner
DATED: August 9, 2002
Trenton, New Jersey ***** End of HE 2003-2 ***** |