H.E. NO. 83-40

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

DOVER MUNICIPAL UTILITIES AUTHORITY,

Respondent,

-and-	Docket No. CI-83-16-43

ROGER CRESPY,

Charging Party.

DOVER MUNICIPAL UTILITIES AUTHORITY,

Respondent,

-and-	Docket No. CO-83-85-44

MYRON POLULAK & TEAMSTERS LOCAL

NO. 97 OF N.J.,

Charging Parties.

Appearances:

For the Respondent

Paschon, Feurey & Kotzas, Esqs.

(Stephen B. Kotzas, Esq.)

For the Charging Parties

Goldberger, Siegel & Finn, Esqs.

(Howard A. Goldberger, Esq.)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on September 13, 1982, and amended on November 1, 1982, by Roger Crespy in Docket No. CI-83-16-43, and a second Unfair Practice Charge was filed on October 5, 1982 by Myron Polulak and Teamsters Local No. 97 of N.J. in Docket No. CO-83-85-44 (hereinafter the "Charging Parties," "Crespy," "Polulak" or "Local 97") alleging that the Dover Municipal Utilities Authority (hereinafter the "Respondent" or the "Authority") had engaged in unfair practices within the meaning of the New Jersey Employer-
Employee Relations Act, as amended, N.J.S.A. 34:13A-1 et seq. (hereinafter the "Act"), in that the Respondent on July 23, 1982 unlawfully denied Polulak's request for union representation at a disciplinary interview and, further, discharged Polulak on that date as a result of the exercise by Polulak of protected activities, including the filing of grievances; and that the Respondent on July 23, 1982, discharged Crespy, a shop steward for Local 97, as a result of Crespy's having engaged in protected activities, inter alia, the filing of a grievance on July 21, 1982; further, both Crespy and Polulak alleged disparate treatment in that other employees' infractions have not led to terminations; all of which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1), (3) and (4) of the Act.1/

It appearing that the allegations of the Unfair Practice Charges, as amended, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on November 18, 1982. Pursuant to the Complaint and Notice of Hearing, hearings were held on February 4, 7, 8, 17 and May 4, 19832/ in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Oral argument was waived and the parties filed post-hearing briefs by May 4, 1983.

Unfair Practice Charges, as amended, having been filed with the Commission, a question concerning alleged violations of the Act, as amended, exists and, after hearing, and after consideration of the post-hearing briefs of the parties, the matter is appropriately before the Commission by its designated Hearing Examiner for determination.

Upon the entire record, the Hearing Examiner makes the following:

FINDINGS OF FACT

1.	The Dover Municipal Utilities Authority is a public employer within the meaning of the Act, as amended, and is subject to its provisions.

2.	Teamsters Local No. 97 of N.J. is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

3.	Roger Crespy and Myron Polulak are public employees within the meaning of the Act, as amended, and are subject to its provisions.

4.	Crespy was hired by the Authority in 1974 as a Line Maintenanceman and continued in that job classification until he was terminated on July 23, 1982. Polulak was hired on July 7, 1975 as a Line Maintenanceman but, shortly thereafter, was reclassified as a Carpenter.3/

5.	The record is clear that Crespy openly engaged in protected activities, of which supervision was aware, as follows: He was shop steward for Amalgamated Union 355 during the approximate one year of its incumbency in 1980 and 1981; Local 97 became the collective negotiations representative in or around August 1981 and Crespy was appointed shop steward in September 1981 and continued in that capacity until his termination in July 1982; Crespy was one of three employees designated by Local 97 to be its negotiation representatives and, in that capacity, Crespy attended all collective negotiations meetings between Local 97 and the Authority; in the collective negotiations meetings with the Authority, Crespy testified without contradiction that he voiced his opinion on the Authority's negotiations offers in strong terms and he also so testified that the Authority's Commissioners did not like his attitude, considering him "off base;" as recently as June and July 1982 Crespy filed two grievances, i.e., on June 18, 1982 against Severs regarding alleged improper sick leave (CP-2) and on July 21, 1982 regarding overtime given to foremen (CP-1).

6.	Robert Brune, the Deputy Director of the Authority from 1978 to 1981 and Executive Director until February 1982, testified without contradiction that John W. Broome, the Executive Director of the Authority since October 1982 and previously the Director of Engineering, and Oliver J. McGuire, the Supervisor of Operations, stated at a weekly administrative meeting of the Authority that Crespy was a "troublemaker" (1 Tr. 32). Also, Brune testified without contradiction that at one or more of the said administrative meetings of the Authority Broome and McGuire stated that "...there probably would not be any Union were it not for the particular efforts of Mr. Crespy" (1 Tr. 32, 33). Brune also testified without contradiction that at one or more of the said administrative meetings of the Authority Broome and McGuire expressed the view that "...if there was anybody that should go, the preference would be for Mr. Crespy" (1 Tr. 34).

7.	Michael Kajan, who was employed as a Line Maintenanceman by the Authority from 1979 until his discharge on July 28, 1982, testified without contradiction that between July 15 and July 20, 1982 he overheard Broome and Severs conversing by the bathroom and, after mentioning Crespy's name, Broome said "...It's going to be trouble with the union, because he was a Shop Steward..." (2 Tr. 41).

8.	Allen Horner, a Line Maintenanceman for the Authority for fourteen years and the shop steward for Local 97 since July 1982, testified without contradiction that in October 1982 he had a discussion with Severs regarding the filing of a grievance where Severs stated "Well, you seen what happened to Roger after he filed a grievance" (2 Tr. 26). After Horner indicated that he did, Severs said "He filed a grievance on a Thursday, and he was dismissed on a Friday" (2 Tr. 26, 27). With that, Severs "Just grinned, more or less" (2 Tr. 27).

9.	On June 18, 1982, the date that Crespy filed a grievance (CP-2, supra), Crespy was issued his first written warning by McGuire for abuse of sick time during the years 1979 through 1982 (R-3).4/ This warning was approved by Broome and Severs, in addition to McGuire. The warning memo indicates that in 1979 Crespy had used all of his sick time except for two and one-half days; that in 1980 he had used all sick time by September; that in 1981 he had used all sick time by November; and that in 1982 he had used nine days in less than six months time. Employees receive twelve sick days and three personal days per year.

10.	Broome testified that Crespy was the Authority's worst and most troublesome employee and that this opinion of Crespy dated back four years. Severs testified that Crespy's job performance was "not very good." Severs stated that he had once recommended that Crespy be discharged but that he was overruled by the then Executive Director, Robert D. Conti. A countervailing opinion of Crespy and Polulak, too, was given by former Executive Director Brune, who testified that he was "favorably impressed" with both Crespy and Polulak. Also, Broome on April 5, 1978 had written a memo to Executive Director Conti regarding the promotion of Crespy on January 16, 1978, which stated, inter alia, that Crespy had shown himself "capable and interested in this new position" and recommended an increase in Crespy's rate of pay (CP-4). Finally, Brune testified without contradiction that in January and February 1982, when the question of a RIP was being discussed, both Broome and McGuire stated to him that all employees were performing well.

11.	The engaging in protected activities by Polulak is much more limited than that of Crespy. The activities consisted of Polulak's having attended and spoken at union meetings of Local 97, having filed a grievance in March 1982 in connection with proposed RIF plus his having signed the grievance, which Crespy filed on July 21, 1982 (CP-1, supra).

12.	With respect to Polulak's job performance and disciplinary history: Brune was favorably impressed by his job performance; Broome and McGuire in January or February 1982 said, according to Brune, that all employees were performing well; Broome testified that Polulak had an extremely bad attitude after he was reclassified in March 1982; and no evidence of prior discipline was elicited.

13.	In the period prior to the discharge of Crespy and Polulak on July 23, 1982 their supervisor was Richard Lecuyer, the Line Maintenance Foreman.

14.	Job duties of a Line Maintenanceman are essentially to clean sewers and manholes, the access to the sewers being through manholes on the street surface. The manholes are situated at points along the main sewer lines. The main sewer lines are cleaned with a high-powered suction jet vacuum, which sucks up waste material. A high velocity hand gun is used to clean the shelves within the manholes by flushing them with water from a tank truck.

15.	Crespy, as a Line Maintenanceman, had been cleaning sewers and manholes for at least two to three years immediately prior to his discharge on July 23, 1982. Crespy credibly denied that he had been instructed by foreman Lecuyer to use the hand gun on every manhole without regard to whether or not it was already clean.5/ Crespy testified without contradiction that when he received an assignment from his foreman he was told to "...do the area the best to your knowledge," explaining that because he was an experienced employee it was assumed that he knew what he was doing (1 Tr. 63).

16.	In the week immediately preceding July 22, 1982 Crespy and Polulak had been working together in cleaning an area of Dover Township known as Shelter Cove. Crespy as the senior and more experienced employee was in charge.

17.	On July 22, 1982 Crespy and Polulak worked on cleaning sewers and manholes on the following streets in the Shelter Cover area: Bermuda, Kingston, St. Johns, St. Thomas and Culebra (see work sheet completed by Crespy: R-1). Crespy returned to the "shop" at about 3:30 p.m. for a union meeting, having left the job site with Polulak about 3:00 p.m.6/

18.	Lecuyer testified that at about 3:30 p.m. on July 21 and July 22, 1982 he pulled a number of manholes in the area in which Crespy and Polulak had been working and discovered that some manholes had not been pulled, that three were "bad" and that not much had been done on the others. On July 22, after pulling 18 to 20 manholes, Lecuyer reported his findings to Severs. The next day, July 23, Severs and Lecuyer went to the job site and pulled 10 manholes and then reported back to McGuire that all of the manholes were "dirty." Severs acknowledged on cross-
examination that he had never previously checked the work of Crespy and Polulak (3A Tr. 31, 32). Lecuyer acknowledged on cross-examination that the first time that he had ever found manholes dirty was in July 1982 and that his last prior check of the work of any Line Maintenanceman was six months earlier when he pulled 10 to 12 manholes (3A Tr. 83, 85). Finally, Severs acknowledged on cross-examination that in the year prior to July 1982 he had never gone out to any job site to see if manholes were improperly cleaned (3A Tr. 50).

19.	On July 23, 1982 Crespy and Polulak drove to Bermuda Drive in the Shelter Cove area where they had been working and at some point between 9:30 and 10:00 a.m. they received a radio message from Lecuyer to "Go and hit the bad spots in town" (1 Tr. 71). After that they responded to an emergency at 242 Clinton Avenue. At 11:00 a.m. an employee, John Risk, intercepted Crespy and Polulak and directed Polulak to accompany him back to the "shop." Kajan, who was with Risk, commenced working with Crespy.

20.	Prior to the arrival of Polulak at the "shop" Severs and Lecuyer had reported to McGuire on their investigation of manholes, stating that they were "dirty," supra. Severs, Lecuyer and McGuire then went to Broome to report on the manholes.

21.	Shortly after Polulak arrived at the "shop" he was requested to go to Broome's office where McGuire, Lecuyer and Severs were also present. Broome informed Polulak that he was there in reference "...to the work that was done yesterday" (2 Tr. 74). Polulak proceeded to describe what work had been done and "they" insisted that he was not telling the truth (2 Tr. 74, 75). He was questioned as to whether Crespy was using the hand gun on manholes. Polulak insisted that the hand gun was used. Polulak testified that he became scared and said "I was afraid of my job, and I asked for union representation" (2 Tr. 75). Polulak testified that this request was ignored and that questions continued. He again asked for union representation, a request which was again ignored. Broome testified that this meeting lasted about one hour. Polulak testified that his first request for union representation came about one-third of the way through the meeting. Severs, McGuire and Broome each testified that Polulak's request for union representation came near the end of the meeting and that their response was to visit the job site. Lecuyer testified that Polulak never asked for union representation. Based upon the demeanor of the witnesses and conflicting testimony of the witnesses for the Respondent, the Hearing Examiner credits Polulak's testimony that his first request for union representation was made at a point about one-
third through the meeting. The Hearing Examiner finds as a fact that each of the two requests by Polulak for union representation was ignored by the supervisors present. The Hearing Examiner further finds as a fact that Polulak was in reasonable apprehension of discipline at the time his first request for union representation was made. This is confirmed by the testimony of Severs on cross-examination that he had decided to recommend discipline when Polulak said the manholes were clean (3A Tr. 38, 46-48).7/

22.	After the foregoing meeting was concluded, Polulak was told to go to the "shop" and, shortly thereafter, he was taken in a station wagon to the Shelter Cove area. The first stop was the last manhole on St. Johns. Those present were Broome, McGuire, Severs, Lecuyer and Polulak. Broome had a camera and commenced taking pictures from atop the open manhole. Next the group proceeded to Bermuda Drive where Broome said that the manhole had never been cleaned. Polulak acknowledged that there was a residue of black film. The number of manholes visited is disputed. Polulak said that only two were visited (St. Johns and Culebra) while Broome testified that four manholes were visited, at which he took photographs. Four photographs were received in evidence.8/

23.	After the group had completed the visit to the manholes, Polulak was taken back to the "shop" and told to mop the floor. Shortly thereafter, he heard on the radio that Crespy had been summoned back to the "shop." When Crespy arrived at about 3:00 p.m. he and Polulak were summoned to Broome's office where McGuire, Severs and Lecuyer were also present. Crespy testified that Broome told him that "...we didn't do our job that day, that he went out and he saw two manholes that were dirty..." (1 Tr. 74). There then ensued a discussion over whether or not the hand gun had been used in the manholes with Broome stating that "...one manhole in particular, 776 Bermuda Drive...was filthy" (1 Tr. 74). Crespy asked Broome to come out to the job site and to look at the grease sucked up by the jet vac. Broome refused Crespy's request. The Hearing Examiner credits Polulak's denial that he made a statement during this meeting to the effect that it was all his fault, notwithstanding the testimony of McGuire to the contrary. The Hearing Examiner has previously credited Polulak over McGuire in connection with Polulak's request for union representation, supra. Broome testified that near the end of the meeting Crespy said "So a couple of manholes were dirty, so what's the big deal" (3B Tr. 58).9/ Broome concluded the meeting with the statement that he had been "...kicking this around since 11:00 this morning..." and "both of you are terminated" (1 Tr. 74). When asked for the reasons for the discharge of Crespy and Polulak, Broome testified that the "major" reason was because of the "untruthfulness" of Crespy and Polulak and Crespy's attitude as indicated by the "big deal" remark, supra (3B Tr. 59).

24.	With respect to the four photographs taken by Broome on July 23, 1982 (see footnote 7, supra) Broome testified that all photographs disclosed dirty manholes. Broome acknowledged that the manhole depicted in R-6 could have gotten into that condition overnight. However, he was clear that the other three manholes depicted in R-5, R-7 and R-8 could not have gotten into that condition overnight. Further, Broome testified that he could not tell if a hand gun had been used on any of the four manholes.10/

25.	Nicholas A. Pomarico, who has had four and one-half years of experience as a Sewer Jet Operator, cleaning sewer main lines and laterals, testified regarding the four photographs taken by Broome, supra. He testified that, in his opinion, the residue shown in R-5, R-6 and R-7 could have accumulated overnight. He testified further that R-8 appeared to depict a clean manhole.

26.	Horner, a Line Maintenanceman for fourteen years, supra, testified without contradiction that Lecuyer, in either late 1981 or early 1982, told him to do a better job and did not discipline him when Horner failed to clean properly a manhole on Jay Street.11/ Horner said that thereafter he used a hand gun.

27.	Kajan, a Line Maintenanceman from 1979 to July 28, 1982, supra, testified without contradiction that after Crespy and Polulak were discharged he was sent out to check and clean manholes in the Shelter Cove area. He said that he checked over 100 manholes and that the first day he flushed 15 to 20 manholes, all of which were clean and without residue.

28.	Evidence of disparate treatment in the disciplining of employees establishes:

a.	Severs: It is not disputed that about six or seven years ago Severs had an accident involving two other vehicles when he was driving under the influence, as a result of which his drivers license was suspended. Thereafter the Authority changed its policy to require that all employees have a drivers license in order to continue in employment. According to Broome, this policy change occurred in 1975. Severs was never disciplined as a result of the incident.

b.	John Risk: Risk is a foreman, who has in recent years been involved in at least two accidents. No discipline was ever imposed. Crespy testified without contradiction that within the year prior to his termination Risk had had an accident involving an Authority trailer and Broome testified without contradiction that sometime in 1981 Risk had had an accident involving a back hoe.

c.	Samuel Galloway: Within the year prior to Crespy's discharge Galloway lost his drivers license and did not report it to the Authority. Thereafter, he was involved in a minor accident and could not produce his drivers license. Galloway initially received a two-week suspension, which was reduced to one week. Broome testified that the reason Galloway was not terminated was that he did not sign the Authority policy, which, as indicated above, was adopted in 1975.

* * *

NOTE:	In the crediting of the testimony of Crespy in this proceeding, supra, the Hearing Examiner relies solely on matters developed on the record at hearings on February 4, 7, 8 and 17, 1983. No weight or consideration whatever has been given to post-February 17th efforts of the Respondent to impeach Crespy's credibility by matters not of record.

THE ISSUES

1.	Did the Respondent violate Myron Polulak's Weingarten12/ rights when it ignored Polulak's request for union representation at the morning meeting on July 23, 1982, and did the Respondent violate Subsections (a)(1) and (3) of the Act13/ by discharging Polulak thereafter on the same date?

2.	Did the Respondent violate Subsections (a)(1) and (3) of the Act when it discharged Roger Crespy on July 23, 1982?

DISCUSSION AND ANALYSIS

The Respondent Violated Polulak's

Weingarten Rights When It Ignored

Polulak's Request for Union

Representation At The Morning

Meeting On July 23, 1982 And Thereby

Independently Violated Subsection

(a)(1) Of The Act When It Discharged

Polulak Thereafter On the Same Date

As the Respondent points out, an employee is entitled to have a union representative present "...at any interview in which the employee reasonably believes that disciplinary action might result..." subject to the limitation that Weingarten rights arise only "...in situations where the employee specifically requests representation..."

The Commission had adopted Weingarten, supra, specifically in the following cases: East Brunswick Board of Education, P.E.R.C. No. 80-31, 5 NJPER 398 (1979), aff'd. in part, rev'd. in part, App. Div. Docket No. A-280-79 (1980); Camden County Vocational Technical School, P.E.R.C. No. 82-16, 7 NJPER 466 (1981); and County of Cape May, P.E.R.C. No. 82-2, 7 NJPER 432 (1981). The Appellate Division in East Brunswick, supra, reversed the Commission on the facts as to whether or not a Weingarten violation had occurred, but affirmed the Commission in adopting Weingarten as precedent from the Federal sector. Thus, the holding of the United States Supreme Court in Weingarten, and subsequent decisions of the NLRB are applicable to cases arising before the Commission.

The Hearing Examiner finds and concludes that the Respondent violated Polulak's Weingarten rights on July 23, 1982. Further, the Hearing Examiner finds and concludes that the discharge of Polulak on that date was based upon information obtained from Polulak at the morning and afternoon meetings. Broome testified that the "major" item in his decision to discharge Polulak was his "untruthfulness,"14/ which necessarily was manifested at the two meetings on July 23, 1982.

The Hearing Examiner has previously found as a fact that Polulak first requested union representation about one-third of the way through the morning meeting on July 23, 1982, which was ignored, and that at the time of the request he was in reasonable apprehension of discipline (see Finding of Fact No. 21, supra). Polulak made a second request at the morning meeting, but did not renew his request for union representation at the afternoon meeting. The same administrators and supervisors were present at each meeting.

In Lennox Industries, Inc. v. NLRB, 637 F.2d 340, 106 LRRM 2607 (5th Cir. 1981), the Court enforced an order of the NLRB and held, inter alia, that where an employee requests union representation at an investigatory interview, and is in reasonable apprehension of discipline, he need not renew or repeat the request at a subsequent meeting as long as at least one supervisor was present at both meetings. The Court said:

"...As long as one or more company officials are aware of the employee's desire and request for the presence of a union representative, a single request will suffice for the multiple subjects of a single meeting, or for multiple meetings which are part of a 'single, interrelated episode,' as here..." (106 LRRM at 2611 (Emphasis supplied).

The Hearing Examiner has previously noted that he does not find probative to a violation by the Authority of the Act, Polulak's testimony as to why he did not attempt to contact either shop steward between the morning and afternoon meetings, i.e., he did not think that he was being "terminated" or "fired" after the conclusion of the morning meeting (footnote 6, supra). Polulak's Weingarten violation occurred during the morning meeting when the Authority's administrators and supervisors twice ignored Polulak's request for union representation when he was in reasonable apprehension of discipline. The mere fact that he emerged from the morning meeting without being terminated did not obligate him to seek union representation between the morning meeting and the eventual afternoon meeting.

The violation of Weingarten occurs when, during an investigatory interview, an employee requests union representation when he is in reasonable apprehension of discipline. Clearly, a Weingarten violation occurred at the morning meeting. Since, under Lennox Industries, supra, there was no need to request union representation at a subsequent meeting, the Respondent Authority violated Polulak's Weingarten rights at the afternoon meeting as well. It is no answer to the issue of union representation to suggest, as does the Respondent, that the presence of Crespy, a shop steward, at the afternoon meeting satisfied Weingarten. Crespy's status in the afternoon meeting was that of an employee under investigation and he, too, was in reasonable apprehension of discipline. Plainly, Crespy's representation of Polulak was not of the type contemplated by the United States Supreme Court in Weingarten.

In Weingarten and in Lennox Industries, supra, the alleged violation of the National Labor Relations Act was of Section 8(a)(1), which, by its term, is directly analogous to Subsection (a)(1) of our Act. The usual remedy for an "(a)(1)" violation of either Act is the posting of a cease-and-desist notice. In the instant case there is involved the discharge of Polulak in alleged violation of Subsections (a)(1) and (3) of the Act. There is also involved the issue of whether or not a "make whole" remedy is warranted and, if so, under which Subsection.

Subsequent to the United States Supreme Court decision in Weingarten the NLRB has had occasion to order "make whole" remedies where a suspension or discharge has occurred following a violation of Weingarten rights. The NRLB in Kraft Foods, Inc., 251 NLRB No. 6, 105 LRRM 1233 (1980) had occasion to delineate the test for determining whether a "make whole" remedy should be ordered in a case involving only an alleged violation of Section 8(a)(1). The Board set forth the following analysis:

"...Initially, we determine whether the General Counsel (Charging Party) has made a prima facie showing that a make-whole remedy such as reinstatement, backpay and expungement of all disciplinary records is warranted. The General Counsel can make this showing by proving that the respondent conducted an investigatory interview in violation of Weingarten and that the employee whose rights were violated was subsequently disciplined for the conduct which was the subject of the unlawful interview.

In the face of such a showing, the burden shifts to the respondent. Thus, in order to negate the prima facie showing of the appropriateness of a make-whole remedy, the respondent must demonstrate that its decision to discipline the employee in question was not based on information obtained at the unlawful interview. Where the respondent meets its burden, a make-whole remedy will not be ordered..." (105 LRRM at 1233).

In Kraft Foods, on the merits, the NLRB found a Weingarten violation but ordered only the traditional cease-and-desist remedy for the Section 8(a)(1) violation. It declined to order a "make whole" remedy because the employer met its burden by negating a prima facie showing for the necessity of such a remedy "...by demonstrating that its decision to discipline...was not based on any information it obtained at the unlawful interview..." (105 LRRM at 1234). The facts in that case were that the employee in question was involved in a fight and that the fight was witnessed by several employees, who were interviewed prior to the unlawful interview of the subject employee and, thus, "...the information obtained...played no part in Respondent's decision to discipline..." (105 LRRM at 1234).

However, the NLRB ordered appropriately a "make whole" remedy in U.S. Postal Service, 256 NLRB No. 12, 107 LRRM 1172 (1981), where, after finding a Weingarten violation of Section 8(a)(1) of the NLRA, the Board concluded that the suspension, which was imposed by the employer, resulted from the employee's conduct at the unlawful investigatory interview. The Board said:

"...The appropriate remedy here is to make Durkin whole for lost wages resulting from his unlawful suspension and to expunge from his records the suspension letter as well as related documents..." (107 LRRM at 1176).

Finally, the NLRB in Montgomery Ward & Co., Inc., 254 NLRB No. 102, 106 LRRM 1148 (1981) ordered the unusual remedy of backpay only to the date of hearing, without reinstatement, where the employer failed to establish that its decision to discipline was based solely on information obtained at an interview with a co-employee, which was independent of the unlawful interview with the terminated employee.

The Commission Hearing Examiner in Bergen County Prosecutor's Office, H.E. No. 83-20, 9 NJPER 83 (1982), found a Weingarten violation where the employee was subsequently discharged. No reinstatement or backpay was ordered since the employee declined reinstatement and no demand was made for backpay.15/

Turning now to the instant case, it will be recalled that Broome's testimony was clear and direct that the "major item" in his decision to discharge Polulak was his "untruthfulness," which necessarily occurred at the morning and afternoon meetings on July 23, 1982 when Polulak sought to explain away the condition of the manholes and failed to acknowledge any dereliction of duty. Thus, according to Broome, it follows that Polulak would not have been discharged, but for his "untruthfulness." The "untruthfulness" having been elicited only at the two meetings on July 23rd, the Hearing Examiner finds and concludes that the Respondent has independently violated Subsection (a)(1) of the Act and will be ordered hereinafter to make Polulak whole: U.S. Postal Service, supra.16/

The Respondent Violated Subsections

(a)(1) And (3) Of The Act When It

Discharged Roger Crespy on July 23, 1982

In order for the Charging Party to prevail as to Crespy, they must prove by a preponderance of the evidence that the action of the Respondent in discharging Crespy was "discriminatory" and was motivated, in whole or in part, by anti-
union animus: Haddonfield Borough Board of Education, P.E.R.C. No. 77-36, 3 NJPER 71, 72 (1977); City of Hackensack, P.E.R.C. No. 77-49, 3 NJPER 143, 144 (1977), rev'd. on other grounds, 162 N.J. Super. 1 (App. Div. 1978), aff'd. as modif., 82 N.J. 1 (1980); and Cape May City Board of Education, P.E.R.C. No. 80-87, 6 NJPER 45, 46 (1980).

Further, it appearing to the Hearing Examiner that this is a case of "dual motive," the Charging Parties must meet the "causation test" enunciated by the National Labor Relations Board in the case of Wright Line, Inc., 251 NLRB No. 150, 105 LRRM 1169 (1980).17/ In Wright Line, the NLRB adopted the analysis of the United States Supreme Court in Mt. Healthy City School District Bd. Ed. v. Doyle, 429 U.S. 274 (1977), which involved the following requisites in assessing the legality of employer conduct: (1) the General Counsel (Charging Party) must make a prima facie showing sufficient to support an inference that protected activity was a "substantial" or a "motivating" factor in the employer's decision to discipline; and (2) once this is established, the employer has the burden of demonstrating that the same disciplinary action would have taken place even in the absence of protected activity.

Based on the Haddonfield line of cases, supra, and the Wright Line-Mt. Healthy analysis, supra, the Hearing Examiner finds and concludes that the Charging Parties have demonstrated by a preponderance of the evidence that the Respondent by its agents violated Subsection (a)(3), and derivatively Subsection (a)(1), of the Act when it discharged Roger Crespy on July 23, 1982.

Crespy had been an employee of the Authority since 1974 and had worked in only one job classification, Line Maintenanceman, since his date of hire. Crespy's history of discipline is slight over the period of his employment from 1974 to July 23, 1982, namely, he was given an oral warning on October 24, 1978 for lateness, a one-day suspension for not reporting damage to an Authority vehicle (date unspecified) and a written warning on June 18, 1982 for abuse of sick time over four-year period from 1979 through 1982 (see Finding of Fact No. 9 and footnote 3, supra).

In support of his conclusion that the Respondent violated Subsection (a)(3) of the Act by the conduct of its agents herein, the Hearing Examiner first notes that the Charging Parties have established preliminarily that Crespy was engaged in protected activities as a shop steward since 1980 and that the Respondent expressly or impliedly knew that Crespy was so engaged: Haddonfield, supra (3 NJPER at 72). A detailed statement of the findings of the Hearing Examiner as to Crespy's protected activities is set forth in Finding of Fact No. 5, supra, and will only be briefly recited again here. As noted above, Crespy has been a shop steward for two unions since 1980, he served on the Local 97 negotiations committee since in or around November 1981 and spoke in such strong terms that the Authority's Commissioners did not like his attitude, considering him "off base," and as recently as June and July 1982 he filed two grievances, one against Severs on June 18th and one on July 21st regarding overtime given to foremen. The Hearing Examiner has found as a fact that Crespy openly engaged in the foregoing protected activities and that the Authority's supervision was aware of these activities.

Further, the Hearing Examiner concludes that the Authority's supervision, particularly, Broome, McGuire and Severs, manifested anti-union animus toward Crespy within the meaning of City of Hackensack and Cape May City Board of Education, supra. The Hearing Examiner bases this conclusion on Findings of Fact Nos. 6-10, supra. Briefly, as testified to without contradiction by Brune, the former Executive Director of the Authority, Broome and McGuire said that Crespy was a "troublemaker," that "...there probably would not be any Union were it not for the particular efforts of Mr. Crespy," and that "...if there was anybody that should go, the preference would be for Mr. Crespy." Kajan, a co-
employee of Crespy, testified without contradiction that sometime between July 15 and between July 20, 1982 he overheard Broome say "...Its going to be trouble with the union, because he was a Shop Steward..." Horner, a co-employee of Crespy and the shop steward for Local 97 since July 1982, testified without contradiction that in October 1982 he discussed with Severs the filing of a grievance and Severs stated: "Well, you seen what happened to Roger after he filed a grievance" and then said: "He filed a grievance on a Thursday, and he was dismissed on a Friday." Further, on the day that Crespy first filed a written grievance on June 18, 1982 he was issued his first written warning for abuse of sick time over a four-year period beginning in 1979. It is noted that the grievance was filed against Severs and that the warning was approved by Broome, Severs and McGuire. Although Broome testified that Crespy was the Authority's worst and most troublesome employee, former Executive Director Brune testified that he was "favorably impressed" with Crespy and that both Broome and McGuire had stated to Brune in January and February 1982 that all employees were performing well. Also, it is noted that Broome on April 5, 1978 stated in a memo that Crespy had shown himself "capable and interested" in a new position and recommended an increase in Crespy's rate of pay.

Now moving to the Wright Line-Mt. Healthy analysis, the Hearing Examiner is clear in his conclusion that the Charging Parties have established a prima facie showing that the protected activities engaged in by Crespy, supra, were a "substantial" or a "motivating" factor in his having been terminated on July 23, 1982. The causal nexus between Crespy having engaged in extensive protected activities since 1980 and the Authority's decision to discharge Crespy on July 23, 1982 appears plain to the Hearing Examiner. As noted above, Crespy's prior disciplinary history was slight and timing of the discipline on June 18 and July 23, 1982 is suspect since it coincided to the day in the first instance, and to two days in the second instance, with each grievance involving the Authority's supervision. The June 18th grievance was filed directly against Severs and the July 21st grievance complained about overtime given to foremen of the Authority.

Obviously, the timing of discipline in the relationship to these grievances would not, in and of itself, be sufficient to establish a causal nexus between the exercise of protected activities by Crespy and his termination on July 23, 1982. However, if one reflects on the evidence of anti-union animus, as set forth above, the Authority's motivation vis-a-vis Crespy becomes abundantly clear. The characterization of Crespy as a "troublemaker" coupled with the other statements of Broome and McGuire, which were made in the presence of Brune, supra, indicate clearly that the activities of Crespy were a "substantial" or a "motivating factor" in the Authority's decision to discharge Crespy on July 23, 1982. The testimony of Kajan, supra, indicates to the Hearing Examiner that Broome was predisposed to take disciplinary action against Crespy as much as one week before the date of actual termination on July 23, 1982. Also, the statement by Severs to Horner in October 1982 was clearly intended to chill the shop steward activities to Horner and supplies post-discharge evidence that Crespy was disciplined "...after he filed a grievance." Thus, as stated above, the Charging Parties have clearly established a prima facie showing that the engaging by Crespy in protected activities was a "substantial" or a "motivating" factor in his termination on July 23, 1983.

The Hearing Examiner finds and concludes that the Respondent Authority has failed to meet the burden of demonstrating that Crespy would have been discharged on July 23, 1982 even in the absence of the exercise by him of protected activities as shop steward since 1980. It is first noted that Broome testified that the "major" reason for the termination of Crespy was his "untruthfulness" at the afternoon meeting on July 23rd and his attitude, as indicated by Crespy's remark, "So a couple of manholes were dirty, so what's the big deal" (see Finding of Fact No. 23, supra). Thus, the Authority did not elect to base its discharge of Crespy on dereliction of duty, i.e., poor job performance on July 22 and July 23, 1983 in the cleaning of the Shelter Cove area.

However, even if the basis of the discharge of Crespy had been dereliction of duty, i.e., poor job performance, the Authority's evidence, as rebutted by the Charging Parties' evidence, is not persuasive and does not satisfy the Hearing Examiner that the Authority has met the burden of demonstrating that Crespy would have been discharged even in the absence of his protected activities. Not only was there no proof that any employee had ever been discharged for failing to clean manholes and sewers properly, but it is undisputed that Lecuyer, in either late 1981 or early 1982, told Horner to do a better job and did not discipline him when Horner failed to clean properly a manhole on Jay Street (see Finding of Fact No. 26, supra).

Additionally, there is a serious question, considering the evidence adduced by the parties, as to whether the manholes in the Shelter Cove were dirty on July 23, 1982, as claimed by the Authority. To rebut the Authority's contention that the manholes were dirty, the Charging Parties produced Pomarico, a Sewer Jet Operator, who testified that three of the four photographs taken by Broome depicted manholes, the residue of which could have accumulated overnight, and that one photograph appeared to depict a clean manhole (see Finding of Fact No. 25, supra). Also, Kajan testified for the Charging Parties, without contradiction, that after Crespy and Polulak were discharged he was sent to check and clean the manholes in the Shelter Cove area. He said that he checked over 100 manholes and that the first day he flushed 15 to 20 manholes, all of which were clean and without residue (see Finding of Fact No. 27, supra).

Thus, Broome's testimony that all of the photographs disclosed dirty manholes does not stand unrebutted. Even Broome acknowledged that one manhole, as depicted in R-6 could have gotten into that condition overnight. Broome also stated that he could not tell if a hand gun had been used on any of the four manholes depicted in Exhibits R-5 through R-8 (see finding of Fact No. 24, supra). It is noteworthy that Broome also acknowledged that the Shelter Cove area had not been flushed since the area was constructed in 1971. It stands to reason that much residue could have accumulated over the course of 11 years prior to Crespy and Polulak appearing in the area to clean the manholes and sewers a week prior to the discharge.

As previously found, the testimony of the witnesses for the parties falls short of conclusively establishing that the Line Maintenancemen are instructed to use a handgun in every manhole without regard to whether or not it is clean (see Finding of Fact No. 15, including footnote 4, supra). Crespy credibly denied that he had been so instructed and Polulak credibly testified that Lecuyer had told him to use his "discretion." Horner testified that he used a handgun only after having been told to do a better job by Lecuyer in either late 1981 or early 1982, following his failure to clean properly a manhole on Jay Street, supra.

Thus, the Authority's proofs establish that no one was ever disciplined, prior to Crespy and Polulak, for failure to clean manholes or sewers properly. It is also noted that Lecuyer acknowledged that the first time he had ever found manholes dirty was in 1982 and that his last prior check of the work of any Line Maintenanceman was six months earlier. Severs acknowledged that in the year prior to July 1982 he had never gone out to any job sites to see if manholes were cleaned properly. (See Finding of Fact No. 18, supra). One might ask why, suddenly, the Authority's supervisors decided to investigate the cleanliness of manholes on July 22 and July 23, 1982, but for Crespy having filed his second grievance against the Authority's foremen on July 21, 1982. Polulak, who by chance was working with Crespy, is thus cast in the role of an innocent bystander when the Authority's true target was Crespy. Polulak's status as a discriminatee in this proceeding has been treated above and will not be considered further in connection with the analysis of Crespy's termination.

Although the Hearing Examiner does not place great weight on the Charging Parties' evidence of disparate treatment in the disciplining of employees (see Finding of Fact No. 28, supra), it is noted that the Authority does tend to handle the disciplining of its supervisors more leniently than other employees, i.e., Severs and Risk. The Hearing Examiner does not give much weight to Broome's testimony that the reason that Galloway was given a one-week suspension was that Galloway had not signed the Authority's policy on the loss of a drivers license.

In conclusion, the Hearing Examiner finds that the Authority's supervisors were discriminatorily motivated by anti-
union animus against Crespy and terminated him in retaliation for the exercise by Crespy of activities protected by the Act: Haddonfield, City of Hackensack and Cape May City Board of Education, supra. Further, the Charging Parties have fully met the causation test set forth in Wright Line-Mt. Healthy, supra, and the Authority has failed to meet the burden of demonstrating that Crespy would have been terminated even in the absence of his exercise of protected activities.

Based on all the foregoing, the Hearing Examiner finds and concludes that the Respondent Authority has violated Subsection (a)(3), and derivatively Subsection (a)(1), of the Act by its conduct herein. Accordingly, an appropriate remedy will be recommended hereinafter as to Roger Crespy.

* * *

Upon the entire record in this case, the Hearing Examiner makes the following:

CONCLUSIONS OF LAW

1.	The Respondent Authority independently violated N.J.S.A. 34:13A-5.4(a)(1) when it discharged Myron Polulak on July 23, 1982, following two meetings with him on that date, where his Weingarten rights were violated.

2.	The Respondent Authority violated N.J.S.A. 34:13A-
5.4(a)(3), and derivatively 5.4(a)(1), when it discharged Roger Crespy on July 23, 1982 on account of the exercise by him of protected activities as a shop steward, the Respondent having failed to demonstrate that he would have been discharged even in the absence of protected activities.

3.	The Respondent Authority did not violate N.J.S.A. 34:13A-5.4(a)(3) as to Myron Polulak.

4.	The Respondent Authority did not violate N.J.S.A. 34:13A-5.4(a)(4) by its conduct herein.

RECOMMENDED ORDER

The Hearing Examiner recommends that the Commission ORDER:

A.	That the Respondent Authority cease and desist from:

1.	Interfering with, restraining or coercing its employees in the exercise of the rights guaranteed to them by the Act, particularly, by (1) violating the Weingarten rights of employees such as Myron Polulak and thereafter terminating Polulak, and (2) by discharging Roger Crespy for engaging in protected activities on behalf of Local 97.

2.	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 the Act, particularly, by discharging Roger Crespy for engaging in protected activities on behalf of Local 97.

B.	That the Respondent Authority take the following affirmative action:

1.	Forthwith offer Myron Polulak and Roger Crespy reinstatement to the position of Line Maintenanceman, or any substantially equivalent position, and make each of them whole for lost wages, less interim earnings, with interest at the rate of 12% per annum18/ from July 23, 1982 and, further, expunge from their personnel files any reference to their discharges on July 23, 1982.

2.	Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix "A." Copies of such notice, on forms to be provided by the Commission, shall be posted immediately upon receipt thereof and, after being signed by the Respondent's authorized representative, shall be maintained by it for at least sixty (60) consecutive days. Reasonable steps shall be taken by the Respondent Authority to insure that such notices are not altered, defaced or covered by other materials.

3.	Notify the Chairman of the Commission within twenty (20) days of receipt what steps the Respondent Authority has taken to comply herewith.

C.	That the allegations that the Respondent Authority violated Section 5.4(a)(4) be dismissed in their entirety.

/s/Alan R. Howe

Hearing Examiner

DATED:	May 13, 1983

Trenton, New Jersey

WE WILL NOT interfere with, restrain or coerce our employees in the exercise of the rights guaranteed to them by the Act, particularly, by (1) violating the Weingarten rights of employees such as Myron Polulak and thereafter terminating Polulak, and (2) by discharging Roger Crespy for engaging in protected activities on behalf of Local 97.

WE WILL NOT discriminate 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 the Act, particularly, discharging Roger Crespy for engaging in protected activities on behalf of Local 97.

WE WILL forthwith offer Myron Polulak and Roger Crespy reinstatement to the position of Line Maintenanceman, or any substantially equivalent position, and make each of them whole for lost wages, less interim earnings, with interest at the rate of 12% per annum from July 23, 1982 and, further we will remove from their personnel files any reference to their discharges on July 23, 1982.