H.E. NO. 2001-15 1 .
H.E. NO. 2001-15
STATE OF NEW JERSEY
BEFORE A HEARING EXAMINER OF THE
PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the Matter of
UNIVERSITY OF MEDICINE AND
DENTISTRY OF NEW JERSEY,
Respondent,
-and- Docket No. CO-H-97-397
CWA, LOCAL 1031, AFL-CIO,
Charging Party.
Appearances:
For the Respondent, John J. Farmer, Jr., Attorney General
(Bindi S. Chandarana, Deputy Attorney General)
For the Charging Party, Weissman & Mintz, attorneys
(Mark Rosenbaum, of counsel)
HEARING EXAMINER'S REPORT
AND RECOMMENDED DECISION
On May 28, 1997, CWA, Local 1031, AFL-CIO (CWA), filed an unfair practice charge which was amended on February 9, 1998, with the New Jersey Public Employment Relations Commission alleging that the University of Medicine and Dentistry of New Jersey (UMDNJ) violated the New Jersey Employer-Employee Relations Act, specifically N.J.S.A. 34:13A-5.4a(1), (2), (3) and (7).1/ The
1/ 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
Footnote Continued on Next Page
original charge alleged that UMDNJ retaliated against employee John Rose for exercising his rights under the Act. The charge alleged that UMDNJ threatened him, reassigned him, denied him the right to attend negotiation sessions and membership meetings, required him to obtain permission before engaging in protected activity, charged him with falsifying documents and reprimanded him for engaging in protected activity.
The amended charge alleged that on or about October 24, 1997, Rose was removed from his supervisory position and employee Richard Gromek was terminated in retaliation for exercising protected activity.
On December 18, 1997, a complaint was issued on the original charge. On March 10, 1998, I amended the complaint to include the amended charge. By letter of April 9, 1998, UMDNJ filed an answer, denying that it violated the Act. 2/ UMDNJ specifically denied that it refused Rose's requests to attend negotiations sessions or membership meetings and asserted that
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interfering with the formation, existence or administration of any employee organization; (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, and (7) Violating any of the rules and regulations established by the commission."
2/ It relied on its January 12, 1998 position statement as its answer to the original charge, and its February 18, 1998 position statement as its answer to the amended charge.
disciplinary warnings against him were based upon his poor job performance. It asserted that the reassignment from the hospital to zone 1 resulted from a reorganization; and it denied that Rose needed permission to participate in protected activity. In its amended answer, it again denied violating the Act, arguing that certain allegations were untimely, and that Rose was demoted and Gromek terminated because of their unsatisfactory work performance. 3/ Hearings were held on October 26, 28, and December 7, 1998, and January 25 and 26, 1999. 4/
On April 14 and 15, 1999, UMDNJ and the CWA, respectively, filed their post-hearing briefs. On April 21, 1999, UMDNJ moved to reopen the record to admit an arbitrator's award regarding Gromek. CWA opposed the Motion. On May 3 and June 25, 1999, UMDNJ and the CWA, respectively, filed their reply briefs in this matter which did not address the motion to reopen the record. On April 27, 2000, I denied UMDNJ's motion to reopen, and did not accept the arbitrator's award into the record.
3/ On April 16, 1998, CWA withdrew that part of its amended charge regarding Richard Gromek. At the hearing on October 26, the parties stipulated that the Gromek allegation had been withdrawn (1T5).
4/ The transcripts shall be referred to as 1T (October 26), 2T (October 28), 3T (December 7), 4T (first half of January 25), 5T (second half of January 25) and 6T (January 26).
Based upon the entire record, I make the following:
FINDINGS OF FACT
1. John Rose has been employed by UMDNJ in maintenance, craft or construction positions since 1984 (2T64). Prior to May 1995, he held non-supervisory positions and was active in his union (1T23). In May 1995, Rose was promoted to supervisor, maintenance and construction, and assigned to University Hospital (2T108). His duties there included in-house repairs, supervising construction and renovation projects, generating job estimates, scheduling workers and other related responsibilities (2T109-2T111).
In June-July 1996, maintenance and construction work for the hospital was taken over by the physical plant department which soon ceased performing renovation and construction projects. That work was assigned to the "Chargeback Unit" (2T110). The Chargeback Unit was created to handle alteration and renovation work for UMDNJ (1T134). It derived its name from the interdepartmental transfer of funds. An estimate would be made of the cost of the requested work. The cost of the work was charged to the department requesting the work which transferred the funds to the Chargeback Unit to pay for the work (2T112).
In October 1996, Rose was assigned to the Chargeback Unit for a short time. In early November 1996, UMDNJ implemented a reorganization of its maintenance/construction work and Rose was assigned to the Medical Science Building and Dental School in Zone 1 (R13; 2T108). Watts assigned Rose to Zone 1 "because he had the potential to be one of the better supervisors" (5T16, 5T18-5T19).
In March 1997, he was returned to the Chargeback Unit with the same supervisory title (2T109). Richard Gromek was the assistant supervisor (1T140). In October 1997, Rose was demoted to assistant mechanic one and Gromek was terminated (2T64).
As supervisor in the Chargeback Unit, Rose maintained an in-house construction crew and was responsible for major and minor renovations throughout UMDNJ facilities. He had 25 employees under his authority. He met with clients who wanted work done, prepared written job estimates of the requested work, ordered all materials, scheduled work crews, decided employee leave requests, and supervised the renovations (2T110-2T111, 2T145-2T146).
2. Rose became active with CWA as a shop steward shortly after his promotion to supervisor, and was elected president of the Newark branch of CWA's Local 1031 in late 1995 or early 1996 (2T122). He was on the negotiations committee leading to J-1, the 1996-1999 collective agreement which was executed on January 31, 1997 (2T123-2T125). Rose considered himself "aggressive" during those negotiations (2T125). Nevertheless, during 1995 and 1996, Rose received good evaluations and several commendations complimenting him on his work (CP-5, CP-9 thru CP-21).
After becoming branch president of Local 1031, Rose's union responsibilities increased. He attended monthly CWA executive board meetings, spent time at the Local's office in Monmouth Junction, attended grievance and other hearings for unit members, and attended labor-management meetings (2T126, 2T129).
Rose's assistant, Richard Gromek, was a CWA unit member but was not active in the union (2T51-2T52).
3. On February 12, 1997, Rose attended a labor-management meeting on behalf of CWA. Assistant Director of Physical Plant Frank Watts, one of Rose's superiors, attended the meeting for UMDNJ. Rose and other employee representatives raised several concerns about the physical plant at that meeting (2T131).
Sometime in early 1997, an emergency occurred for which Watts attempted to contact one of the maintenance supervisors by radio. They were at a lunchtime union meeting about which Watts had not been informed. On February 20, 1997, Watts sent Rose the following memorandum (CP-1):
As per the agreement between the University of Medicine and Dentistry of New Jersey and Communications Workers of America, AFL-CIO Local 1031,...: any request to represent a staff member, investigate a grievance (max. 1hr), post union notice, attend negotiating meetings or attend scheduled meetings with University shall be done by requesting permission from management. We should be given reasonable notification whenever you request permission for these activities.
Considering that you are responsible for both the Medical Science Building and Dental School, you must be selective with the amount of union activity you are involved with.
I am requesting that I be notified of all of your approved request for union business. No union activity should be conducted prior to my knowledge.
Physical Plant's mission to provide safe, comfortable physical conditions for staff, faculty, students, patients and visitors while maintaining all physical facilities, requires
focused leadership. It is your responsibility to maintain this standard.
The contractual language referred to in CP-1 is the following pertinent part of J-2, Section 3.05 (the 1994-1996 collective agreement):
The University agrees that during working hours, on its premises and without loss of base pay, or when otherwise agreed upon, Union representatives previously designated and authorized to represent the Union and recognized by the University shall be allowed to:
a) Represent a staff member in the department/ work unit.
b) Investigate a grievance, providing such investigation time will be limited to a maximum of one (1) hour and further provided there is no interruption of work activities. In emergency situations, these time limitations may be extended if approved by the Office of Human Resources or the supervisor on duty should the Office of Human Resources be closed.
c) Post Union notices.
d) Attend negotiating meetings (the number of representatives to be agreed upon between the Union and the University) if designated as a member of the negotiating team scheduled to attend by the Union.
e) Attend scheduled meetings with the University.
The authorized Union representative shall provide reasonable notification to his/her manager or immediate supervisor whenever he requests permission to transact such Union business. Permission will not be unreasonably withheld. It is further understood that the manager or immediate supervisor of the authorized Union representatives has the right to seek rescheduling of appointments when the work situation warrants this.
Rose spoke to Watts shortly after receiving CP-1. The conversation concerned issues raised in the labor-management meeting on February 12, and the impact of CP-1 (2T132-2T134). Rose said that Watts told him that his role with the union could affect his evaluation and his career at the University (2T132, 2T136). Rose further characterized the conversation as follows:
A. Mr. Watts always referred to [me] as a team player. And in that conversation right there, either I had to be a team player--in other words, I wore two hats, but I couldn't wear two hats as far as Frank was concerned. I couldn't wear a hat as a supervisor and a team player and also being [sic] a union official. He wouldn't accept that fact that I could be both. [2T135].
Watts denied telling Rose that his union activity could affect his performance evaluation (5T7). 5/
Watts knew Rose was a union president when CP-1 was issued and he wanted Rose to inform him of such meetings in the future (5T17-5T18, 6T16). Although Watts referred to section 3.05 of the parties' agreement, and believed the employees had not followed the proper procedure by getting permission prior to attending the meeting, he did not frame the issue in CP-1 as one of contract violation, he framed it as a reminder to Rose about what Rose's
5/ On direct examination Rose stated that the remark was made in a parking lot after receiving CP-1, but on cross examination Rose did not recall Watts' having said anything about union activity affecting his evaluation "at that time." (3T12-3T13). I do credit Rose's belief that Watts made this comment at some point during the early months of 1997.
priorities were (or should be) (CP-1, 5T51).6/ Watts issued CP-1 to give Rose a "heads up" to allow him to do his job and "not get in a jam." (3T52). Watts believed that Rose's priority was as an employee of the University (5T51), and he (Watts) explained what he meant about how Rose should be "selective" about how much union activity he engaged in. Watts testified:
I want him to realize his main responsibility to the University of Medicine and Dentistry. In this case, the Department of Physical Plant. And he needed to be selective in the decisions he made and how they affect his customers and his duties in the Physical Plant. [5T54-5T55].
I infer that Watts was hostile towards Rose's protected activity. He allegedly issued CP-1 because of a concern that he was unable to locate any supervisors, and that none of their managers could account for their whereabouts (5T17-5T18, 5T43). But Watts could not identify the specific emergency which caused him to personally try to contact any of four supervisors (Rose, Robinson, Amato and Gromek) and stated there were emergencies every day (5T42, 5T52-5T53). Despite the fact that there were three other employees "missing" on the day the emergency leading Watts to issue CP-1 arose, and Watts believed they also should have sought prior
6/ On cross examination of Rose, counsel for UMDNJ brought out the fact that section 3.05 does not appear to apply to the lunchtime meeting situation. None of its specific subsections (a through e) cover the holding of lunchtime, drop-in meetings. Drop-in means members come as they can for brief periods, but no one attends for the entire period from 11:30 a.m. to 2:00 p.m. (1T50-1T51, 3T22-3T24). Thus, Watts' reliance on section 3.05 appears misplaced.
permission to attend the lunchtime meeting, Watts chose to direct his admonitions to Rose personally, and to send copies to others. 7/ I infer from this conduct that he intended to "publicly" discredit Rose to the other recipients. I infer there were veiled threats contained in CP-1: "you must be selective with the amount of union activity you are involved with." And, "It is your responsibility to maintain this standard," raises the question why the other supervisors who attended the meeting weren't also reminded of their responsibilities to maintain standards and admonished to keep their priorities straight. Based on all of the circumstances surrounding CP-1, including the heavy-handed and cautionary tone of the memo, I infer Watts' hostility towards Rose's protected activity. Up until this point, Watts had thought highly of Rose's abilities and work habits.
4. On March 17, 1997, Watts sent a letter to CWA staff representative Kathleen Hernandez-Barnett (CP-25), criticizing her statements in a prior memorandum, and commenting upon John Rose's union activity. Watts wrote:
I have read your March 5, 1997 memorandum that outlines your interpretation of the February 13, 1997 meeting with four of your members and UMD Management.
7/ Copies of CP-1 were sent to James Meeker, Director of Physical Plant; Robert Gallt, Rose's supervisor; Raafat Boles, Assistant Manager for Zones 6 & 7; Paul Crawford, Group Manager Maintenance & Construction; CWA Business Representative Kathleen Hernandez-Barnett and Walter Pino, Dept. of Human Resources at UMDNJ.
I must remind you, as I did in my prior memorandum, that your spurious accusations regarding Physical Plants hiring practices are way out of line.
It is my responsibility as Assistant Director of this department to be aware of any and all union activities. It is also the responsibility of the Supervisors of Physical Plant to assure their role as Physical Plant first line supervisors. When, John Rose is reminded of his responsibility to notify me of all union activity, it is incumbent of him to do so and to react as a member of my team.
It is also your responsibility to know who the players are, and who to direct your inquiries to. To ask me why Affirmative Action has taken so long to approve our candidate for Supervisor of Maintenance & Construction implies that you assume that I would know that answer. I suggest you direct that question to the Office of Affirmative Action.
It is also interesting that you should copy the Board of Concerned Citizens regarding our meeting.
Physical Plant will not be intimidated into acquiescing to CWA requests under duress.
CWA will not coerce this department with ominous remarks that attempt to besmirch Physical Plant's reputation. This department has worked long and hard to achieve our goals of pursuing excellence and will not tolerate aspersion of Physical Plant.
I will continue to evaluate this department and identify ways to improve our performance. Your memorandum says that some of my remarks will not bode well for our future working relationship. I suggest you stick to the agreement between CWA and the University. I will do the same.
In closing, John Rose works for me, it is his responsibility to maintain his zone, and as a officer of CWA to perform his union duties. However, when he is performing as a supervisor, he is performing as a first line supervisor for management. He is expected to keep the interest of this department in the forefront of his
activities. John Rose has received my support in the past. Both his and CWA's arbitrary claim that I am harassing him is incongruous and inappropriate.
I remain adamant that Physical Plant achieve its mission to provide safe and comfortable physical conditions for all staff, faculty, students, patients, and visitors while maintaining all the physical facilities in sound operating order. I expect my staff to do the same.
Rose and the other supervisors, maintenance and construction were sent copies of CP-25 (2T142). From that letter Rose inferred he had to restrict his union duties or he might be punished (2T143-2T144). This letter also demonstrates Watts' animus and goes beyond mere criticism of Barnett and Rose. Rose was justified in inferring that CP-25 was threatening.
In early April of 1997, Rose was assigned to arrange for the painting of certain parking lots. His immediate supervisor, Paul Crawford, directed him to assign Afro-American employees to one lot and Hispanic employees to another (2T137-2T138). Rose thought it was discriminatory to make such an assignment and he reported the incident to an affirmative action officer at UMDNJ (1T129, 2T138). 8/ Rose testified that at a supervisors meeting on April 21, 1997, Rose said Watts referred to him (Rose) as not being a team player because he went to affirmative action (2T144). Watts testified that he did not know who had complained to affirmative
8/ Crawford admitted to Affirmative Action Manager Darnel Reamer that he had ordered the separation of employees along race/ethnic lines and he was counselled that such assignments were inappropriate (1T128-1T130).
action and he denied making any comment about Rose not being a team player (5T28).
Based upon CP-1, CP-25 and the affirmative action incident, Rose believed Watts was picking on him due to the exercise of his protected activity (2T127-2T144). I credit Rose's testimony and conclude that Watts did not feel Rose was a team player because of Rose's protected activities.
5. By April 1997, the backlog of single craft project estimates in the charge back unit was increasing. Rose had only been reassigned there for two months (R-14, 5T21-5T23). There were fewer charge back unit employees to clear up the backlog due in part to a reduction in force the previous year (1T90-1T91). Watts set specific productivity goals in a meeting on April 21, 1997 (CP-28). On May 6, 1997, Watts sent a memorandum to Rose and Gromek (CP-28) criticizing them for failing to purge 130 calls for single craft projects. Purging involves telephoning or visiting with all 130 customers to determine whether the job in question is still needed (2T163, 5T29). CP-28 provided in pertinent part:
On April 21, 1997, both of you were present at the monthly supervisor's meeting. During that meeting you were directed to purge any single craft projects that were no longer valid from the system (see attached agenda). This task was to be done prior to the April Monthly Report, which was due on May 1, 1997.
After reviewing Bob Gallt's monthly activities report for April 1997, I observed that the single craft projects that were supposed to be purged were still in the system. I asked Bob Gallt if either of you had given him any closeouts, and he replied that the only alterations to the single
craft numbers were done after he revised his information. In short, both of you disregarded a direct order and failed to supply me with the management information I requested.
This is totally unacceptable. I do not hold meetings and assign tasks without a reason. I expect that this information will be purged by May 23, 1997, in time for the next report period.
In conclusion, any repeat of this type of behavior will result in a disciplinary action up to and including termination.
Even though the backlog was high, the reorganization was still fairly recent and being fine-tuned (5T26), and Rose had only been there for two months, Watts set less than a two week time limit on the assignment to close out these single craft estimates (5T29, CP-28). Watts testified that prior to CP-28 (May 6, 1997), he did not recall having any trouble with Rose's performance (5T92). In fact, he said Rose was a hard worker, put in his time and didn't have an attendance problem (5T93). On February 5, 1997, Watts approved Gallt's good evaluation of Rose (CP-6). But Watts said that Rose's performance had begun to slip and he was becoming more "aggressive" which led to CP-28 (5T100). Watts testified that this aggressiveness was the beginning of the alleged collusion between Rose and Gromek (5T100).
Watts explained that he did not see the change in Rose immediately, that it was not until he started hearing about the "changes" (5T94-5T98). When Watts was asked on cross-examination about "what changes took place," he said:
As was reported to me what started taking place is that he [Rose] wasn't available at certain times when he was looked for.
The facility managers,...called me with concerns about the work not being done.
I think...John's problem was time management, initially, and it might have eroded as he became involved with more activities, you know, in all honesty.[5T95]. 9/
Watts claimed he tried to speak to Rose about his behavior around the time CP-28 issued, but Rose became openly hostile toward him (5T101). Upon cross-examination Watts testified that Rose became belligerent and aggressive after CP-1 was issued on February 20, 1997, yet Watts had assigned him to the Chargeback Unit in March 1997 and earlier testified that he could not recall having any trouble with Rose's performance prior to May 6, 1997 (3T13, 5T92, 6T24-6T28, R-14). Consequently, I find that Rose was not hostile or belligerent but that Watts was reacting more to Rose's protected activity rather than his performance.
6. On or about May 1997, Rose and a contract project engineer, Douglas Rand, were involved in the renovation of three clinic areas near the hospital. During the daytime, the movement of doctors and patients through the clinics prohibited construction projects and so most of the work occurred at night (6T35-6T36, 6T38). Typically, Rose met with Rand and Group Manager Crawford about the craftsmen needed on each shift. Because employees
9/ I infer that Watts statement "when he was looked for" refers to the times Rose was attending union meetings, and the language "he became involved with more activities" referred to Rose's exercise of protected activities. Therefore, I find the "change" Watts referred to was Rose's protected activity.
generally work daytime hours, but not evenings, Rand would issue written instructions to Rose about the night work requirements (6T48-6T50). Rose was responsible for scheduling the employees (6T40). Rand was informed at some point prior to May 9, 1997, that one of the clinic areas would be available for daytime work on May 9 (6T38). On Thursday, May 8, 1997, Rand gave Rose written instructions on which employees were needed for a night crew project that evening (CP-42, 6T47-6T49), but did not give Rose written instructions on which, if any, employees were needed the morning of Friday, May 9 (6T48-6T49). Rose had never failed to assign employees when given written instructions (6T51). Rand testified that he held a short meeting with Crawford and Rose to let them know they had access to one of the clinic rooms the following day and to tell them what craft persons were needed (6T40). Not having received written instructions for assignments on the morning of May 9, Rose did not schedule a crew. Rand testified that he gave Rose both the written instructions for Thursday night (May 8, CP-42), and oral instructions for working on Friday morning, but that he did not give the oral instructions at the same time he gave Rose CP-42 (6T48-6T49). Rand could not be sure when he gave oral instructions but thought there could be no misunderstanding (6T49-6T50). Based on this testimony, I believe that it was likely that there was a misunderstanding as to the scheduling requirements for May 9th, and thus, no one was scheduled. Rand stated he held a meeting with Rose and Crawford and gave oral instructions. Crawford did not testify.
It was unusual to have access to the areas during the day. The project had only involved night and weekend work up until then (6T39). On May 13, 1997, Rose received the following warning notice (CP-26) from Paul Crawford:
On May 8, 1997, I gave you an assignment to supply four Painters, two Carpenters and two Electricians to Doug Rand on Friday morning, May 9, 1997. They should have continued to work through Friday. You were also told that the same number of men should continue working Saturday morning through Saturday afternoon until Unit #7 was completed. I visited the area at 9:10 a.m. and there were no craftsmen on the job. I immediately called you on the radio to find out where the scheduled manpower for the project were. Your reply to me was, "you thought the men were scheduled to work on Friday night only and Saturday. You also had a meeting with Doug Rand on Thursday, May 8, 1997, and you both confirmed that the men would be on the project Friday morning working through Saturday. John, you know how important this project was, you have sat in on almost every meeting regarding this project. You also should know the importance of this project as a supervisor. I feel you did not follow through with your end of the responsibility. Your action of not carrying out your assignment is totally unacceptable and will not be tolerated. Any other infraction of this nature will result in the next disciplinary step of suspension and/or termination.
Crawford's writing does not corroborate Rand's version of the meetings and orders. He appears to indicate that he was not present at the meeting where Rand gave oral instructions, and it appears he believed he directed Rose to supply workers to Rand on Friday morning, May 9, 1997. Based on the testimony, and the tone of CP-26 (the threat that the most severe punishment available, termination, could be the next step) I find that CP-26 is evidence of animus.
7. As a result of a backlog in the Chargeback Unit, a large number of projects needed estimates (2T167). On July 23, 1997, Crawford sent a memorandum (CP-29) to Rose, Gromek and three others directing them to complete ten estimates each per week. These were not single craft projects. They were major projects requiring extensive renovation (2T168). Rose believed that given his normal duties in the Chargeback Unit, it would be nearly impossible for him to comply with Crawford's memo (2T169, 2T170). Those duties included fixed daily responsibilities such as: recordkeeping, data entry, ordering materials, assigning mechanics, reviewing the progress of jobs, preparing timesheets and time cards, responding to radio and telephone communications, and attending meetings (1T156). Included in those duties was the requirement to answer all the telephone and radio calls from Watts and Crawford. At times, Watts and Crawford were calling Rose and/or Gromek several times a day, sometimes every 15 minutes (1T158-1T160, 3T128, 3T142-3T143, 3T152). Those communications from Crawford and Watts often interrupted Rose's work schedules forcing him to do more record keeping and delaying his other work (1T158-1T161).
Rose's responsibility over the chargeback crew included scheduling his staff on various projects. But Rose testified that Crawford began to interfere with his duties and disrupting his schedules by moving and reshuffling his staff, and telling him not to start projects until he (Crawford) gave the authorization (2T186). Rose claimed that Crawford contradicted his own prior
instruction by issuing a memorandum on August 28, 1997 (CP-34) directing him, Gromek and Gallt (Plant Engineer) to schedule and start projects without waiting for his approval (2T186).
On July 28, 1997, as a result of the increase in their assignments, Rose and Gromek responded to CP-29 with their own memorandum to Crawford detailing all of their regular duties and responsibilities and explaining why the additional estimates assignment was too burdensome (CP-30). Crawford responded on August 5, 1997 denying Rose and Gromek's request to compromise on the quotas: "There will be no exceptions." (CP-31). He noted that if they could not perform all of their responsibilities "other options" would be considered (CP-31).
Since Crawford did not approve of any exceptions in CP-31, Rose met his quota of ten project estimates per week but could not keep up with the single craft estimates. Crawford wanted him to do fifty single craft estimates per week (2T176), and issued that directive in a memorandum on September 16, 1997 (CP-32).
Rose responded to CP-32 by memorandum dated September 26, 1997 (CP-33). He referred to his own July 28th memorandum CP-30, and advised Crawford that due to absences and reassignments he and Gromek could not reach Crawford's goal.
On October 15, 1997, Local 1031 Staff Representative Kathleen Hernandez-Barnett met with UMDNJ Director of Labor Relations, Howard Pripas to discuss issues raised by Rose regarding the Chargeback Unit. Barnett memorialized the discussion in her
letter of October 27, 1997 to Pripas and UMDNJ Vice President (for physical plant) Celia Abalos (CP-2). That letter provides:
On Wednesday, October 15, 1997, CWA met with both of you to discuss several issues within Physical Plant. Here are the points that were made:
Staffing Levels:
Chargeback was previously staffed with five (5) supervisors; one (1) Supervisor of Maintenance and Construction, one (1) Assistant Supervisor Maintenance and Construction, and three (3) Planner/Schedulers.
Currently there are one (1) Supervisor and one (1) Assistant Supervisor of Maintenance and Construction.
Chargeback hired a Planner/Scheduler, who is being paid from the Chargeback account, but not working in Chargeback.
Chargeback is run differently then a few years ago. There are now Zones, which means there are limited amount of men to handle the workload.
There are twenty-five (25) men to handle three hundred (300) open work orders.
The men were instructed to perform ten (10) multi-craft estimates a week and fifty (50) single craft estimates each week (memos enclosed).
The men responded with a written memo as well as a verbal explanation as to why these duties would be difficult to achieve (enclosed).
The jobs that the supervisors schedule are constantly rearranged by management, making scheduling difficult.
Majority of jobs say: "Rush" and there are problems regarding documentation and communications with the sub-contracted Maintenance and Construction Supervisors.
Management is abusive and accusatory.
Communication is almost non-existent existent.
The men are told: "Rush", "No excuses"....
Tape recordings of management stating: "I hate these freakin' guys."
Statements like: "I'm the head nigger in charge".
Supervisors out on stress related illnesses, specifically in the Chargeback Zone (Mr. Gromek and Mr. Thier).
Accusatory statements instead of questions. (Example: man who was not assigned to a job, requested vacation leave, signed proper paper work, then stated he was sent home.)
With respect to the staff (Operating Engineers) absenteeism is on the rise, comments like: "I'm going to get a gun" or "I'm going to go postal" have been heard, men are keying the radio when managers are speaking (Keying means blocking transmission), men are unhappy about the camera, men are often coerced into overtime in non-emergency situations...
The morale is extremely low.
CWA stated more than once that the workers feared they will be terminated or disciplined as a result of the above stated problems. It appears that each time they utilize the Union to try to discuss the problems, they are disciplined. This is harassment and a [sic] Unfair Labor Practice (ULP). Mr. Gromek and Mr. Rose have been suspended for three (3) days within a week of our Labor-Management meeting. Their suspensions state that termination may occur in the future for additional poor performance.
It is CWA's understanding that the both of you will meet with Ms. Kavanaugh regarding our meeting. We sincerely hope that change will occur as a result of your meeting. Currently, CWA is proceeding with the Unfair Practice Charges regarding Mr. Rose, we are requesting a report from Affirmative Action regarding the practices and comments in Physical Plant, and we are filing grievances regarding the disciplinary
actions taken against Mr. Gromek and Mr. Rose. It is within your power to institute change and hopefully settle many of these issues amicably. Thank you for your attention to these matters.
Neither Rose nor Gromek could do all the estimates Crawford required and still do all of their other work. On October 21, 1997, Crawford issued an unsatisfactory job performance memorandum to Rose (CP-35), and Gromek (R-16) for failing to complete fifty single craft project estimates per week. The memoranda were written warnings in lieu of three-day suspensions. CP-35 provided in pertinent part:
The results of your efforts in this assignment are completely unacceptable. In the four weeks following the assignment, you were required to complete 170 estimates. You actually turned in only 29 estimates. In other words, you spent a total of less than five hours over the past four weeks to complete your assignment. This type of job performance will not be tolerated. You have already proved that you are capable of doing the assigned work when you completed your required multi-craft estimates assigned to you in June. In addition, your job assignment was eased with the elimination of the multi-craft responsibility. Your reaction to this reduction in responsibility was to do fewer estimates rather than more estimates.
This blatant inattention to duty was further illustrated when you failed to submit a "Request for Time Off" slip for two of your workers. The Manager of Maintenance and Records had no knowledge that you had approved time off until after that time was taken. You had been counseled by the timekeeper to turn in the request on the day of approval. This is standard procedure. To further compound your inattention to duty, you failed to assure that a direct report punch out his time-card after he had punched in. You were warned that all of your staff were to punch both in and out without exception. These are violations of both UMDNJ
and the Physical Plant Department rules and practices.
As a result of your unsatisfactory job performance, you are hereby issued this written warning in lieu of a three day suspension. Any reoccurrence of poor job performance will result in further disciplinary action up to and including termination.
R-16 contained the same first and third paragraphs.
Rose notified Local 1031 staff representative Kathleen Hernandez-Barnett that he had received CP-35, then he and Gromek highlighted their notices and posted them on bulletin boards in their office to remind themselves of their obligation to do the estimates (2T193-2T196). Rose regularly highlighted and posted such notices on his bulletin board or office walls to remind himself of his more urgent responsibilities (2T194-2T196, 3T78-3T79, 3T82, 3T118). That office was also used by other supervisors and crafts employees (5T32). Watts claimed that Rose's action posting CP-35 was egregious, and was a concerted and deliberate act to undermine management which warranted Rose's discipline (6T10).
Gromek was terminated over hanging R-16. On October 24, 1997, Crawford demoted Rose to his former non-supervisory position of Mechanical Systems I Mechanic (CP-36). Crawford wrote,
On Wednesday, October 22, 1997, I issued both of you and Rich Gromek a written warning in lieu of a three day suspension for unsatisfactory performance.
On Thursday, October 23, 1997, I observed that both you and Mr. Gromek had posted your disciplinary memorandums side by side on a bulletin board in full view of your staff, coworkers and public. Your highlighting of the
subject matter and of my determination in those memorandums was an obvious attempt to draw attention to the documents.
On Friday, October 24, 1997, not withstanding the written warning issued on October 22, 1997, for unsatisfactory performance, you failed to provide an acceptable number of estimates. Your continual refusal to comply with your assignment is unacceptable.
You are a first line supervisor and the first line of management in this department. In these deliberate acts of retaliation and defiance, both you and Mr. Gromek intentionally sought to provoke your management. These blatant acts of defiant insubordination cannot and will not be tolerated. Your egregious actions clearly undermine the management of this institution.
This is grounds for immediate dismissal from the University. Taking into consideration the length of service you have attained at UMD, you are hereby demoted to your former position.
Effective immediately, you will resume your position as Mechanical Systems I Mechanic reporting to Zone 7 Supervisor, Gene Amato.
Watts said that posting CP-35 and R-16 was inappropriate because both Rose and Gromek were first line supervisors and their discipline should not have been made public because it could demoralize the Chargeback team (5T34).
Rose removed CP-35 from the bulletin board when he was asked to take it down (2T201, 5T87).
Based on all the above, I conclude that Crawford and Watts set up unattainable work goals for Rose and were unresponsive to his attempts to inform them about that fact. I credit Rose's testimony that Watts and/or Crawford were radioing Rose at too fast a pace, and interfering with his ability to complete assignments. They appeared to set him up to fail.
When in a relatively short period (from September 16 to October 27th) he did fail to meet UMDNJ's productivity goals, he received a reprimand in lieu of a three-day suspension.
Rose's posting of the notice of reprimand was not a deliberate act to undermine management. He testified credibly that it was his habit to post notices and informational memos on the walls immediately around his desk for his own uses, not to attract the attention of coworkers (2T194-2T196, 3T78-3T79, 3T80, 3T82, 3T100, 3T118). 10/ Watts asserted that the posting was in public view. Watts testified:
Q.: ...Now could you describe what you mean by a public area?
A.: It was in the supervisor's office. However, the supervisor's office had a window in it. And the supervisor's office, also, if the door is propped in the open position, that's the first thing that you see. [5T35]
Watts later admitted it really was not an area open to the public (5T82-5T85).
CWA representative Hernandez-Barnett testified that this demotion was disproportionate to that meted out for other more serious infractions and was inconsistent with the University's progressive disciplinary system (1T40-1T44). For example, Supervisor Gary Pence was demoted for allegedly having kicked (ie., assaulted) another employee (1T44). A supervisor in the pathology
10/ Rose corroborated this testimony by providing photographic examples of where he posted notices around his desk (CP-41).
department was given a twenty-day suspension for failing to perform a lab test which could have harmed a patient, and he had first received three oral warnings (1T39-1T40). And another supervisor who had treated a subordinate favorably because they had an outside business relationship only received an oral warning (1T40).
ANALYSIS
The Alleged Violation of 5.4a(3) and (1)
The primary issue in this case is the a(3) allegation: whether Rose was demoted because of his exercise of protected activity. The standard for deciding a(3) cases was established by the New Jersey Supreme Court in In re Bridgewater Tp., 95 N.J . 235 (1984). There the Court held: "no violation will be found unless the charging party has proved, by a preponderance of the evidence on the entire record, that conduct protected by the Act was a substantial or motivating factor in the adverse action. This may be done by direct or circumstantial evidence showing 1) that the employee engaged in activity protected by the Act, 2) that the employer knew of this activity, and 3) that the employer was hostile toward the exercise of the protected activity." Id. at 246.
If the employer did not present evidence of a motive not illegal under our 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 motives unlawful under our Act and other motives contributed to a personnel action. In these dual motive
cases, the employer will not have violated the Act if it can prove, by a preponderance of the evidence on the entire record, that the 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 proved, on the record as a whole, that anti-union animus was a motivating or substantial reason for the personnel action. Conflicting proofs concerning the employer's motives are for the hearing examiner, and then the Commission to resolve.
In its post-hearing brief, the Charging Party argues that UMDNJ's warning, suspension and demotion of Rose was based on union animus because of his active leadership on behalf of CWA. It contends that Rose's problems with management began after he became CWA branch president in late 1996, and that comments, memoranda and actions from Frank Watts and Paul Crawford were made in retaliation for Rose's exercise of protected activity. The Charging Party seeks Rose's reinstatement to the supervisor of maintenance and construction title, full back pay with interest, restoration of seniority and pension rights, and other standard relief.
UMDNJ argues that Rose's evaluations did not mention his union activity, that he was always permitted to attend union meetings, that Watts' letter requesting Rose to notify him when union business would be conducted was consistent with the parties' agreement, and that actions taken against Rose were based on legitimate business reasons. It seeks dismissal of the charge.
The record reveals that from late 1996 through all of 1997, John Rose was actively engaged in protected activity. He was a CWA shop steward and branch president, he served on CWA's negotiations team, attended negotiations and labor-management meetings. Frank Watts and Paul Crawford were aware of Rose's roles in CWA. In February 1997, Watts attended a labor-management meeting as a representative of UMDNJ, at which Rose raised issues about working conditions in the physical plant department. Watts was aware that Rose attended lunchtime meetings of CWA members.
I further found that Watts and Crawford were hostile toward Rose's protected activity. Watts thought highly of Rose's work habits and supervisory abilities until early 1997, when Rose became active in CWA. Watts' singled out Rose from a group of "missing" supervisors to admonish Rose about maintaining high standards and being selective about how much union activity he engaged in. Timing of an action can be indicative of motive. CP-1 was issued on February 20, 1997, within a week of a joint labor-management meeting at which complaints about conditions in physical plant were raised. On March 17, 1997, Watts sent a letter to CWA staff representative Kathleen Hernandez-Barnett (CP-25), criticizing her statements and further commenting upon John Rose's union activity. The angry language and circumstances attendant to CP-1 and CP-28, including timing, demonstrate Watts' hostility.
Watts' hostility was also borne out by his remarks that [Rose] was not a team player because he had reported Crawford to the
affirmative action office. I did not credit Watts' testimony that Rose had become belligerent but found that Watts was reacting more to Rose's protected activity rather than his performance. I believe that it was likely that there was a misunderstanding about the scheduling for the clinic renovation May 9, 1997 (Rand incident) and find that Crawford's threat to terminate Rose in CP-26 also evidenced animus.
Considering the severity of the punishment imposed on Rose (demotion) for posting a memo near his work station, I find that the weight of the evidence does not support the University's claimed business justification. Watts and Crawford set unreachable productivity goals and deadlines and were unresponsive to any attempt by Rose to adjust the goals or deadlines. They demanded quick action on a very large number of outstanding project estimates. They were inflexible, and when Rose failed to meet the goal, carried out their threat to discipline him. The notice of discipline included a reminder and warning that he meet the standard. When he posted the notice near his desk as a reminder about what the standards were, Watts and Crawford demoted him. In light of the foregoing, I find that the University's proffered reasons for the demotion of Rose were pretext.
The Alleged Violation of section 5.4a(2)
CWA also alleges that UMDNJ violated 5.4a(2) of the Act which prohibits public employers from "dominating, or interfering with the formation, existence or administration of any employee
organization." The type of activity prohibited by 5.4a(2) must be pervasive employer control or manipulation of the employee organization itself. North Brunswick Twp. Bd. Ed., P.E.R.C. No. 80-122, 6 NJPER 193, 194 (& 11095 1980). The record evidence does not support this allegation. Accordingly, I recommend that the 5.4a(2) allegation be dismissed.
Based upon the above findings and analysis, I make the following:CONCLUSIONS OF LAW 1. The University of Medicine and Dentistry of the State of New Jersey violated 5.4a(1) and (3) of the Act by demoting Supervisor of Maintenance and Construction John Rose on October 24, 1997 in retaliation for Rose's union activities on behalf of CWA unit employees.
2. The University did not violate 5.4a(2) or (7) of the Act. RECOMMENDED ORDER I recommend the Commission ORDER:
A. That the University of Medicine and Dentistry of the State of New Jersey cease and desist from:
1. Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act, particularly by demoting Supervisor of Maintenance and Construction John Rose in retaliation for Rose's union activities on behalf of CWA unit employees.
2. Discriminating in regard to the tenure of employment to discourage employees in the exercise of the rights guaranteed to them by the Act, particularly by demoting Supervisor of Maintenance and Construction John Rose in retaliation for Rose's union activities on behalf of CWA unit employees.
B. That the University take the following action:
1. Rescind the demotion of John Rose to Mechanic and restore him to Supervisor of Maintenance and Construction and expunge the attendant disciplinary charges from his record.
2. Restore John Rose to his position as Supervsor Maintenance and Construction; make him whole for any monies and fringe benefits lost by reason of his demotion on October 24, 1997, plus interest pursuant to R.4:42-11(a) for each year.
3. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix "A." Copies of such notice shall, after being signed by the Respondent's authorized representative, be posted immediately and maintained by it for at least sixty (60) consecutive days. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by other materials.
4. Notify the Chair of the Commission within twenty (20) days of receipt what steps the Respondent has taken to comply with this order.
C. That all other allegations in the charge, and amended charge be dismissed.
Elizabeth J. McGoldrick
Hearing Examiner
Dated: December 22, 2000
Trenton, New Jersey
!!@GH0!!!@BT0!!!/120!!!@LN20!
WE WILL cease and desist from interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act, particularly by demoting Supervisor of Maintenance and Construction John Rose in retaliation for Rose's union activities on behalf of CWA unit employees.
WE WILL cease and desist from discriminating in regard to the tenure of employment to discourage employees in the exercise of the rights guaranteed to them by the Act, particularly by demoting Supervisor of Maintenance and Construction John Rose in retaliation for Rose's union activities on behalf of CWA unit employees.
WE WILL rescind the demotion of John Rose to mechanic and restore him to supervisor, maintenance and construction and expunge the attendant disciplinary charges from his record.
WE WILL restore John Rose to his position as Supervsor Maintenance and Construction; make him whole for any monies and fringe benefits lost by reason of his demotion on October 24, 1997, plus interest pursuant to R.4:42-11(a) for each year.
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