H.E. NO. 94-19 1.
H.E. NO. 94-19
STATE OF NEW JERSEY
BEFORE A HEARING EXAMINER OF THE
PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the Matter of
ESSEX COUNTY,
Respondent,
-and- Docket No. CO-H-92-78
COMMUNICATIONS WORKERS OF AMERICA,
Charging Party.
Appearances:
For the Respondent, Stephen J. Edelstein, Essex County
Counsel (Lucille LaCosta-Davino, Deputy County Counsel
For the Charging Party, Weissman & Mints, Attorneys
(Steven P. Weissman, of counsel)
HEARING EXAMINER'S REPORT
AND RECOMMENDED DECISION
An Unfair Practice Charge was filed with the Public Employment Relations Commission ("Commission") on September 16, 1991 by the Communications Workers of America ("Charging Party" or "CWA") alleging that the County of Essex ("Respondent" or "County") has engaged in Unfair Practices within tht meaning of the New Jersey Employer-Employee Relations Act, as amended, N.J.S.A. 34:13A-1 et seq . ("Act"); in that one Hiram G. Ramos was employed within the clerical negotiations unit at the County's Division of Welfare until April 15, 1991; in or about March or April 1991, Ramos was requested to perform duties that he had not performed previously; on April 11th he was summoned to the office of the Field Office Manager, who wished to speak to Ramos about his duties; Ramos requested union
representation, which was denied; Ramos was then informed that certain duties were part of his job and he was asked whether he would perform these duties; Ramos again asked for union representation but his meeting with the Field Office Manager was terminated and Ramos was ordered to report to the Personnel Office where he was given written notice of termination, effective April 15, 1991; the matter was grieved by CWA on April 25th and this grievance was denied on May 10, 1991; all of which is alleged to be in violation of N.J.S.A. 34:13A-5.4(a)(1), (2) and (5) of the Act.1/
A Complaint and Notice of Hearing was issued on December 27, 1991. Pursuant to the Complaint and Notice of Hearing, a hearing was held in Newark, New Jersey, on July 14 & September 7, 1993. The hearing had been preceded by several adjournments sought by CWA as it considered bringing in outside counsel. Ultimately it did not do so.
1/ These subsections prohibit public employers, their representatives or agents from: "(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act. (2) Dominating or interfering with the formation, existence or administration of any employee organization. (5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative."
At the hearing in this matter, the parties were given an opportunity to examine witnesses, present relevant evidence 2/ and argue orally.3/ The parties waived oral argument (2Tr41, 42). The parties filed post-hearing briefs by December 21, 1993.
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Upon the entire record, I make the following:
FINDINGS OF FACT
1. The County of Essex is a public employer within the meaning of the Act, as amended, and CWA is a public employee representative within the meaning of the same Act.
2. For the purposes of this proceeding, Hiram G. Ramos is a public employee within the meaning of the Act.
3. Ramos was hired as a "Provisional" Security Guard by the Essex County Department of Citizen Services, Division of Welfare, in or around November 1988 (1Tr11, 12, 45, 90).
2/ At the commencement of the hearing on July 14th, counsel for the Respondent moved to dismiss on the ground that CWA had, by seeking and obtaining several adjournments from the original hearing dates of February 13 & 14, 1992, abandoned its Unfair Practice Charge by having failed to timely prosecute the matter (1Tr7, 9, 10). Should the motion be denied, and the matter allowed to proceed, then the Respondent argued that any back pay award should end as of February 13 or 14, 1992, the original hearing dates (1Tr8). After hearing the response of CWA, I denied the motion to dismiss without prejudice and the hearing proceeded (1Tr10).
3/ At the conclusion of CWA's case, it moved to amend its Unfair Practice Charge by adding a Section 5.4(a)(3) allegation and dismiss its Section 5.4(a)(2) and (5) allegations (1Tr23-31, 35). Both requests were granted (1Tr31, 35). Finally, the County moved to dismiss at this juncture but its motion was denied (1Tr32-42).
4. Prior to April 5, 1991, Ramos had never been suspended or disciplined. In his performance evaluation of January 25, 1991, the last one prior to the precipitating incident in this case, his performance was rated outstanding. [1Tr16, 20, 48-50; CP-1]. Prior to his evaluation of January 25, 1991, supra , Ramos had been evaluated once every six months and received the same "outstanding" evaluations (1Tr20).
5. Ramos' supervisor since August 1990 had been Joan Ellison, an Assistant Field Office Manager (1Tr48). Among other classifications of employees, Ellison supervised Security Guards (1Tr44).
6. In the early part of 1991, particularly in or around March of that year, Ellison started to notice some problems in Ramos' performance, i.e ., his handling of the mail, his failure to wear appropriate uniform attire and Ramos' persistence in carrying handcuffs, which he was not suppose to do (1Tr50, 51; 68-72). Ellison did not reduce the above problems to writing until April 5, 1991 when she detailed complaints against Ramos from March 21, 1991 through April 3rd (R-1; 1Tr53-55, 72-74).
7. Following Ramos' receipt of the above April 5th memorandum from Ellison, Ellison called Ramos to a meeting with another Security Guard, Peter Pacillo, on April 11th. Although Pacillo was present, he did not participate. [1Tr12, 13, 20, 21, 45, 46, 74]. At this meeting, Ramos asked for union representation since he wanted to "clarify" his job duties and he felt that he
could do better by having union representation (1Tr13).4/ According to Ramos, Ellison's demeanor in response was that "...she was mad, angry...," based on her tone of voice in "...denying me union representation..." (1Tr13). 5/ After stating to Ramos that union representation was not necessary since the meeting was not disciplinary, Ellison proceeded to explain what his duties were (1Tr13, 14). 6/ Ramos "indicated" to Ellison that her explanation involved "...clerical duties and that he was not going to do them..." [1Tr46, 76-78]. When Ellison proceeded to discuss his job duties, Ramos again asked her for union representation "...so I can ask her questions about my job duties...," which she refused (1Tr14, 15, 77, 78). At that point Ellison told Ramos to return to his post and she stopped the meeting. [1Tr13, 14, 47].
8. Thus, Ramos had twice asked for union representation and twice Ellison had stated that it was not necessary (1Tr77, 78). Ellison acknowledged that she knew how to contact a union representative but that she knew that there was no one available at
4/ Pacillo made no request for union representation (1Tr76).
5/ I credit Ramos' testimony that Ellison expressed anger toward him. Further, I find that the conduct of Ramos was an affront to Ellison's authority as a supervisor. I reject Ellison's denial that she was angered by Ramos' conduct. I find Ellison's post-meeting testimony implausible at best (see infra, F/F Nos. 10-12).
6/ This testimony of Ellison is credited as is the balance of this F/F No. and F/F Nos. 8 & 9, infra . As authority for crediting/discrediting the same witness, see: Salem County, P.E.R.C. No. 87-122, 13 NJPER 294 ( & 18124 1987).
that time. This fact had been confirmed by Ellison's secretary, Yvonne Adams. [1Tr78-80].
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The evidence regarding the effort of the County to procure union representation for Ramos is essentially irrelevant to the issue raised by his request for representation under Weingarten, infra . Thus, I am not especially concerned with whether or not Ramos was interested in having a Mr. Hairston represent him or David H. Weiner, the President of the Charging Party (1Tr80; 2Tr39, 40).
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9. According to Ellison, the purpose of the meeting was to explain the job responsibilities of the Security Guards and, as she was trying to do so, Ramos asked for union representation, which she felt was unnecessary since the matter was in no way a "disciplinary hearing..." [1Tr45, 46]. On cross-examination, Ramos acknowledged that the meeting with Ellison had nothing to do with discipline but had to do with raising the "...question on what my job duties were" (1Tr21).
10. After the conclusion of her meeting on April 11th, Ellison said that she "immediately" went "upstairs," seeking a copy of Ramos' job description (Security Guard) and at that time learned that he was being terminated (1Tr55, 56). She was so informed by George Clemens, Director of Personnel (1Tr 83, 86, 87; 54). With no credible intervening linkage, this precipitous occurrence defies logic. At this point, who in the County could have had any facts
justifying a decision to discharge Ramos?7/ Clemens told Ellison that, based upon her memorandum (R-1), and prior incidents involving Ramos, he "should be terminated". Clemens added that since Ramos was not a permanent employee the County did not have to "...put up with that kind of actions or non-actions..." [1Tr87, 90]. This sequence of events does not ring true. Where is the County's progressive discipline procedure and that requiring supervisor input/recommendation prior to discipline [see CP-2 and F/F No. 13]? What was the great rush?
11. Ellison next returned to her office where she received a telephone call from James Petrone of Personnel, following which Petrone gave Ellison a form (R-2) for her signature, which was a "Request for Formal Disciplinary Action" against Ramos (1Tr59, 60, 84, 87-89; R-2). Again, Id., as to the great rush.
12. Later in the afternoon of April 11th, Ellison called Ramos into her office, and, based on prior instructions from James Petrone of Personnel, she told him to report to Petrone of Personnel (1Tr62, 63). Ramos did not request union representation at this time. Ramos did not see Alan Zalkind, the Department Director of the Respondent. He only saw Petrone (1Tr63). Compare 1Tr14, 15 where Ramos said it was Zalkind that he saw. Ramos was formally terminated by letter at the end of the week of April 11th (1Tr89).
7/ I do not credit Ellison's testimony that she did not intend to recommend the discharge of Ramos, following the conclusion of the April 11th meeting. I am asked to believe that this task was undertaken by Clemens without her knowledge. [1Tr56, 57, 82, 83].
13. David H. Weiner, the President of the Charging Party's Local 1081 for twelve years, testified without contradiction regarding the Respondent's disciplinary policies and procedures. He has been involved in literally hundreds of disciplinary proceedings and has represented at least 25 provisional employees, as distinct from permanent employees, in these proceedings (2Tr13, 16). Weiner stated that when a supervisor wishes to initiate disciplinary action, it is done on a form so requesting (2Tr21, 22, 25; CP-3).
14. The County has had a policy of "progressive discipline," of which Ellison was aware and which is found in its Procedures Manual and has been in effect since August 1, 1985 (1Tr72, 73; CP-2). It was in effect when Ramos was terminated in April 1991, and it is applied to both permanent and provisional employees, each of whom Weiner has represented (2Tr18, 19, 21). The Manual states, inter alia , that the first step in discipline shall be counseling, followed by an oral warning. The next step is a written reprimand, followed by suspensions of five or thirty days or more. The policy recognizes that in the case of a severe violation an employee may be suspended or discharged immediately. Further, the policy is quite explicit as to the steps which must be undertaken by supervision before the imposition of the next disciplinary step. Finally, Weiner testified credibly that he was not aware of any instance in which an immediate supervisor had not offered input into or initiated a recommendation to discipline an employee; this has applied to both permanent and provisional
employees (2Tr26). Ellison acknowledged her "ability" (authority) to recommend discipline but that she failed to do so as to Ramos (1Tr72, 73).
15. Weiner filed a grievance on behalf of Ramos (1Tr97, 98). The third page of R-1 indicates that Ramos had filed such a grievance. The County's position was that it was non-grievable. [See memorandum to Weiner from James J. Williams, dated May 10, 1991: R-1, p.3].
16. On April 11th, Zalkind received a telephone call from either the Division Director, Judith Goldstein, or the Assistant Field Office Manager [who must have been Ellison] (2Tr5,6; 1Tr48) informing him that Ramos had walked out of a meeting where his job duties were to be discussed (2Tr7). Zalkind asked for "their" recommendation, which was that "he (Ramos) should be terminated." Zalkind concurred.
17. Zalkind testified that Ramos was "deficient and unfit to carry out his duties. The charges were insubordination..." Also, Ellison's memorandum of April 5th (R-1) played a definite part in his decision to terminate Ramos, i.e ., "a pattern of incidents that suggest to me that Mr. Ramos was either unwilling or unable to adhere to directives he received from his superiors" (2Tr6, 7).
18. At no time had Zalkind learned on April 11th that Ramos had asked for union representation at "that meeting," only that Ramos had "walked out of a meeting" (2Tr7, 8).
19. Zalkind explained that the County does not generally suspend provisional employees such as Ramos but rather terminates them (2Tr9).
ANALYSIS
The Issues
1. Has the CWA, on behalf of Ramos, proved that the County independently violated Ramos' Weingarten rights under Section 5.4(a)(1) of the Act?
2. If not, did Ramos' requests for union representation on two occasions during his meeting with Ellison on April 11, 1991, constitute the exercise of a protected activity under our Act. Query : Did the County thereafter violate Section 5.4(a)(3) of the Act when it terminated Ramos within hours of his requests for union representation on April 11th?
The Positions Of The Parties
1. The Position Of The County : The County first states that it did not violate the Act by Ellison's refusal to accede to Ramos' request for union representation at the meeting on April 11th. Further, the County is of the view that it had adequate grounds to terminate Ramos based on the content of Ellison's memorandum of April 5th (R-1). The April 5th incidents indicate to the County that Ramos had trouble following orders and that, although Ellison did not recommend discipline, her superiors decided to terminate Ramos' employment. Zalkind testified that his decision to terminate Ramos was based solely on the content of R-1 and the
fact that unsatisfactory provisional employees are terminated and not suspended. Because no anti-union animus or hostility was evident from the testimony, the County argues that it did not violate Bridgewater, infra . Even assuming the existence of hostility and/or animus, the County's decision to terminate meets the second part of the Bridgewater test, namely, that Ramos would have been terminated even in the absence of any protected activity.
2. The Position of CWA : Ramos' twin requests for union representation constituted protected activity under the Act, a proposition with which I agree. CWA's further contention that Ramos reasonably believed that his interview/meeting with Ellison might result in disciplinary action is something to be discussed further hereafter. Although the County plainly had knowledge of Ramos' protected activity (F/F Nos. 7-9, supra ) there remains the question as to whether or not the County was hostile toward this exercise by Ramos. CWA then turns to the County's explanation as to whether or not the discharge of Ramos was based solely upon the April 5th memorandum. From there CWA contends that Ellison's explanation of the events following her ending of the meeting on April 11th should not be credited, either as defying common sense or because her testimony contradicted Zalkind. And, finally: Ellison's testimony is inconsistent with the County's disciplinary procedures.
The Rule of Weingarten As To
A Section 5.4(a)(1) Violation
The initial question with which I am confronted is whether the termination of Ramos on April 11, 1991, violated ' 5.4(a)(1) of
our Act, i.e., NLRB v. Weingarten, 420 U.S. 251, 88 LRRM 2689 (1975). 8/
The Court in East Brunswick had stated that:
Weingarten recognizes that requiring a lone employee to attend an investigatory interview which he reasonably believes may result in the imposition of discipline perpetuates the inequality the NLRA was designed to eliminate and bars recourse to the safeguards the act provides "to redress the perceived imbalance...between labor and management." Weingarten, 420 U.S. at 260-262. [Slip Opinion at pp. 6-8]. 9/
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The Supreme Court, in defining the scope of the Weingarten right, set forth five "contours and limits of the...right...," only four of which need be referred to here (see 88 LRRM at 2691):
1. The right of an employee to refuse to submit to an interview without union representation, which he reasonably believes may result in disciplinary action, is based upon Section 7 of the
8/ The Commission adopted the holding of Weingarten , following its decision in E. Brunswick Bd. of Ed ., P.E.R.C. No. 80-31, 5 NJPER 398 ( & 10206 1979), aff'd in part, rev'd in part, App. Div. Dkt. No. A-280-79 (1980).
9/ Since East Brunswick, the Commission has applied the Weingarten rule in many cases: see, State of N. J. (Dept. of Human Services), P.E.R.C. No. 89-16, 14 NJPER 563, 565 (& 19236 1988), adopting H.E. No. 88-55, 14 NJPER 374, 377, 378 (& 19146 1988); Jackson Tp ., P.E.R.C. No. 88-124, 14 NJPER 405 ( & 19160 1988), adopting H.E. No. 88-49, 14 NJPER 293, 304, 305 (& 19109 1988); Dover Municipal Utilities Auth., P.E.R.C. No. 84-132, 10 NJPER 333 (& 15157 1984); Stony Brook Sewerage Auth ., P.E.R.C. No. 83-138, 9 NJPER 280 ( & 14129 1983); East Brunswick Tp ., P.E.R.C. No. 83-16, 8 NJPER 479 ( & 13224 1982); Cape May Cty ., P.E.R.C. No. 82-2, 7 NJPER 432 ( & 12192 1981); Camden Vo-Tech. School , P.E.R.C. No. 82-16, 7 NJPER 466 ( & 12206 1981).
NLRA, which guarantees the right of employees to act in concert for "mutual aid and protection." [somewhat different language in ' 7 than in our Act but of like intent].
2. The Weingarten right arises only in situations where the employee requests representation.
3. The employee's right to request representation as a condition to participation in an interview is limited to situations where the employee "...reasonably believes the investigation will result in disciplinary action...," supra, as measured by objective standards.
4. The exercise of the right may not interfere with legitimate employer prerogatives.
In Finding of Fact No. 7, supra , I found that Ramos asked for union representation but, in so doing, he stated that the purpose was to "clarify" his job duties and that he felt he could do better by having union representation. After Ellison stated to Ramos that his request for union representation was not necessary since the meeting was not disciplinary, she proceeded to explain what his duties were. Ramos again requested union representation, indicating that her explanation involved "clerical duties and that he was not going to do them." Ramos' second request for union representation was, as he stated, "...so I can ask her questions
about my job duties..." Ellison again stated that this request was not necessary. 10/
Resort to precedent in the federal sector is helpful at this point11 / since it follows directly from the "contours and limits" of the Court's defining of the statutory Weingarten right, supra . Without repeating the facts as found in F/F No. 7, Ramos could not have reasonably believed that his meeting with Ellison was an "interview" or an "investigation" that would result in disciplinary action. Ellison's meeting of April 11th seems closer to the situations presented in two NLRB decisions where no ' 8(a)(1) violation was found.
[1] In Amoco Chemicals Corp., 237 NLRB No. 69, 99 LRRM 1017 (1978) two employees were required to attend counseling interviews regarding excessive absences. Their requests for union representation were denied since they had been informed that no discipline would be forthcoming. Thus, they had no reasonable ground for believing that the interviews would result in disciplinary action.
[2] In U.S. Postal Service, 252 NLRB No. 14, 105 LRRM 1200 (1980) the Board agreed with its ALJ that the required "fitness for
10/ Ellison acknowledged that she knew how to contact a union representative but knew that no one was available, this having been confirmed by her secretary, Yvonne Adams. [F/F No. 8]. I find this fact to be irrelevant to whether a Weingarten right has been violated.
11/ Recognized in Lullo v. IAFF, Local 1066, 55 N.J. 409, 421-24 (1970).
duty examinations" were not part of any disciplinary proceedure. They were prompted by personnel problems such as excessive absenteeism, etc., which did "...not fall within the purview of Weingarten..." (105 LRRM at 1200).
These two Board decisions are predicated upon an earlier holding of the Board in Quality Manufacturing Co., 195 NLRB No. 42, 79 LRRM 1269 (1972) where it stated that it would not apply what later became the Weingarten rule:
...to such run-of-the-mill shop-floor conversations as, for example, the giving of instructions or training or needed corrections of work techniques. In such cases there cannot normally be any reasonable basis for an employee to fear that any adverse impact may result from the interview...79 LRRM at 1271.
It seems to me that there can be no other tenable conclusion but that Ellison's meeting of April 11th with Ramos and Pacillo was of the exact type found in Amoco and Postal Service and as posited earlier by the Board in Quality . Ramos' own testimony convinces me that at no time was he in apprehension of discipline, by either subjective or objective factors. Basically, what Ramos sought from Ellison was her acceptance of his wishes as to how her meeting was to be conducted.
CWA's contention that Ramos was in apprehension of discipline when he met with Ellison on April 11th, must be rejected since, as indicated previously, the testimony of Ramos demonstrates that he was not in apprehension of discipline. In F/F No. 7, I found as a fact that Ramos acknowledged that his meeting with
Ellison had nothing to do with discipline but had to do with raising the "...question on what my job duties were..." (1Tr21). He understood fully that he was there to have his duties explained and the evidence adduced by Ramos and Ellison confirms this fact.
Given that there was no element of discipline involved in the meeting of April 11th between Ramos and Ellison, any suggestion that the County violated the rule of " Weingarten" under ' 5.4(a)(1) of the Act must fall.
The Bridgewater "Test":
Determining Employer Motivation
In Cases Of Discipline
Since the sudden termination of Ramos raises the question of whether or not the County was illegally motivated, it is necessary to set forth the criteria for determining whether or not the County violated Section 5.4(a)(3) of the Act. In doing so, we apply the analysis devised by our Supreme Court in Bridgewater Township v. Bridgewater Public Works Association, 95 N.J . 235 (1984) to assess employer motivation. The Court there articulated the following test: (1) the Charging Party must make a showing sufficient to support an inference that protected activity was a "substantial" or a "motivating" factor in the employer's decision; and (2) once this is established, the employer has the burden of demonstrating that the same action would have taken place even in the absence of protected activity ( see 95 N.J. at 242).
Further, the Court stated that no violation may be found unless the Charging Party has proved by a preponderance of the
evidence on the record as a whole that protected activity was a substantial or a motivating factor in the employer's adverse action. This may be done by direct or circumstantial evidence, which demonstrates that:
(1) the employee engaged in protected activity; and
(2) the employer knew of this activity; and
(3) the employer was hostile toward the exercise of the protected activity. [95 N.J. at 246]. 12/
But if the record demonstrates that a "dual motive" is involved, the employer will be found not to have violated the Act if it has proven by a preponderance of the evidence that its action would have been taken even in the absence of protected conduct [ Id . at 242]. This affirmative defense need only be considered if the Charging Party has first proven on the record as a whole that hostility or animus was a "...motivating force or substantial reason for the employer's action..." [Id].
If, however, the employer has failed to present sufficient evidence to establish the legality of its motive under our Act, or, if its explanation has been rejected as pretextual or a sham, then
12/ Note, however, that the Court in Bridgewater stated further that the "Mere presence of anti-union animus is not enough. The employee must establish that the anti-union animus was a motivating force or a substantial reason for the employer's action..." (95 N.J. at 242).
there is a sufficient basis for finding a violation of the Act without more. 13/
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Ramos' Protected Activity
As noted above under the Bridgewater analysis, the Charging Party must first demonstrate by direct or circumstancial evidence that the employee involved engaged in protected activity.
There appears to be no Commission precedent for the proposition that an employee who seeks to invoke his Weingarten right, but without success, based upon the facts, has nevertheless engaged in protected activity within the meaning of Section 5.4(a)(1) of our Act. Again, resorting to the federal sector for precedent [ i.e., Lullo, supra], the Supreme Court in Weingarten analyzed at length Section 7, upon which the right to union representation is based. For example, the Court stated: "...The action of an employee in seeking to have the assistance of his union representative at a confrontation with his employer clearly falls within the literal wording of ' 7 that 'employees shall have the right...to engage in...concerted activities for the purpose of...mutual aid or protection...'" (88 LRRM at 2692).
The Court in Weingarten stressed that the Section 7 right obtains even though a single employee may have the sole stake in
13/ Because I am persuaded that this case is one of pretext or sham , I will later expand upon the pretext analysis as articulated by the NLRB in Wright Line, Inc., 251 NLRB 1083, 105 LRRM 1169 (1980).
the outcome. This is significant here since our Act does not specifically refer to either "concerted activities" or "mutual aid or protection." However, when the Commission adopted Weingarten in or around 1980, supra , its rationale and holding necessarily embraced the right of an individual employee to assert the Weingarten right under our Act in the same manner as an employee covered by the NLRA. [See 88 LRRM at 2693].
In Anchortank, Inc. v. NLRB , 615 F.2d 1153, 104 LRRM 2689 (5th Cir. 1980), the Court stated, inter alia , that: "...Section 7 protected concerted activity by employees, and one employee's request for the presence of another unit employee at an interview is concerted activity. See NLRB v. J. Weingarten, Inc., 420 U.S. 251, 269 & n.1..." [104 LRRM at 2691].
Finally, as authority for the proposition that the exercise of the Weingarten right is a protected activity under our Act, as well as under the NLRA, see Slaughter v. NLRB, 876 F.2d 11, 122 LRRM 2867 (3rd Cir. 1986). After referring to the five "contours and limits" of Weingarten and Quality Mfg. Co., supra , the Third Circuit Court of Appeals stated unequivocally that "...We think it is plain beyond cavil that the Weingarten right is rooted in ' 7's protection of concerted activity..." (122 LRRM at 2872).
Accordingly, I find and conclude that Ramos was engaged in protected activity under our Act when he twice sought union representation during his meeting with Ellison on April 11th. 14/
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Hostility And/Or Animus
The next and final question is whether or not CWA has proven that the County by its agents and representatives was hostile towards Ramos' exercise of the protected activity of seeking union representation. Ramos testified that Ellison, by her demeanor and tone of voice, indicated that she was "mad" and "angry," following his first request for union representation. I have not credited Ellison's denial of Ramos' testimony on this point because I have found her overall testimony as to what transpired after she ended the meeting with Ramos to be unworthy of belief.
In other words, if I have serious problems with the post-meeting phase of Ellison's testimony, infra , then I clearly have grave doubts as to whether or not I should believe her denial that she did not manifest a hostile attitude toward Ramos when he requested union representation earlier in the day of April 11th.
It defies logical explanation as to why Ellison would (1) go directly "upstairs" for a copy of Ramos' job description and (2)
14/ There can, of course, be no question but that the County had knowledge through Ellison of Ramos' exercise of the protected activity of twice requesting union representation at her April 11th meeting.
there be confronted immediately with the fact that Ramos was being terminated. Presumably, this event occurred only minutes after she left her meeting with Ramos (1Tr84). How could Clemens of Personnel have known about Ramos, a low-profile provisional employee with two and one-half years of employment, when Ellison had never even spoken to Clemens (1Tr83)?
Recall that Weiner's uncontradicted testimony in this proceeding was that he had never seen an instance where an immediate supervisor, i.e., Ellison, had not recommended discipline, in writing, before it was imposed. It is beyond belief that Ellison had no role in the termination of Ramos, as she insisted, when it was she who had to recommend discipline, in this case termination, before it was imposed pursuant to the County's own procedures.
For the same reasons, I cannot credit Ellison's "story" about what transpired from the time that she "immediately" went "upstairs," after her meeting, until she later summoned Ramos into her office. As I ponder the statement made to Ellison by Clemens, regarding her memorandum (R-1), and the fact that since Ramos was not permanent, the County did not have to "...put up with that kind of actions or non-actions..." I must ask: How could Clemens have become so deeply enmeshed, so early, in the termination of a low-profile provisional Security Guard, hired just two and one-half years earlier.
Next lets look at the "Request for Formal Disciplinary Action" form (R-2), which Petrone, also of Personnel, proferred to Ellison during the afternoon of April 11th, for her signature. Why would Petrone have given this form to Ellison, who according to her version of events was in no way involved in the discharge of Ramos? Or, put differently, isn't it odd that Ellison, who insists that she had nothing to do with the termination of Ramos, and who claims that she first learned of the termination when she bounded "upstairs" after ending her meeting with Ramos, should shortly thereafter sign Ramos' "death warrant" (R-2, supra )? Note that her errant behavior above is completely contrary to the procedures set forth in the County Manual, both as to "progressive discipline" and as to the testimony of Weiner, concurred in by Ellison, that discipline must be preceded by a recommendation and/or input from the immediate supervisor (here Ellison).
We move next to Zalkind, the Department Director, whose testimony is, at best, based upon sparse knowledge of the facts as of the afternoon of April 11th. Initially, he placed himself "out of the decisional loop," regarding the termination of Ramos by stating that he received an unsolicited telephone call on April 11th from either the Division Director, Judith Goldstein, or an Assistant Field Office Manager, one of whom was Ellison, Ramos' supervisor. After they told Zalkind that Ramos had walked out of a meeting where his job duties were to be discussed, Zalkind asked for "their recommendation," which was "termination." He concurred.
The County's script throughout the afternoon of April 11, 1991, forecloses any contention by the County that its actions that day constituted the exercise of a legitimate business justification under Bridgewater or Wright Line . For one thing, it seems strange, indeed, that so many of the "top brass" of the County's Department of Citizen Services reached such a quick and unanimous decision to fire a low-profile provisional Security Guard. What possible threat did Ramos pose, that obviated the following of the normal course of progressive discipline under the County's long-standing procedures? What the County's scenario does suggest is that the three representatives, who were involved in the Ramos termination, manifested the requisite hostility or animus, i.e. suspect timing, infra , to satisfy fully the first part of the Bridgewater analysis.
Zalkind's testimony raises many questions relevant to the County's true motivation in terminating Ramos. Where, for example, did Zalkind obtain the data upon which he concluded that Ramos was "deficient and unfit to carry out his duties..."? Also, considering Ellison's testimony, it was less than clear that the charges included "insubordination" (1Tr69-72 v. F/F No. 17). He stated that he relied upon R-1 as a basis for termination, but Zalkind was not even "copied." Do we not return, essentially, to the fact that Zalkind first learned anything about Ramos when he received a telephone call on April 11th from either Goldstein or Ellison, who informed him that Ramos had walked out of a meeting where his job duties were to be discussed. Zalkind then asked for
"their recommendation", which was that Ramos be terminated. Zalkind concurred and thereafter he terminated Ramos. What this testimony of Zalkind does indicate is that Ellison was one of two persons to whom Zalkind spoke, i.e ., at least a 50% possibility exists that Ellison was enmeshed early in the decisional process to terminate Ramos. If so, this refutes her testimony of total non-involvement in the termination.
I take note here of the facts in Bridgewater , which established employer hostility and which are applicable to the case at bar. The Court stated:
...Longo's transfer, so soon after his March 5th protest and his recent promotion; the absence of any written complaints about his employment; and the failure of the Township to follow its own written procedures and give Longo thirty days' written notice of the elimination of his position and his transfer. (95 N.J. at 247) (Emphasis supplied).
There can be no doubt whatsoever but that the timing of the discharge of Ramos, which occurred in the short span of time from the end of Ellison's meeting on April 11th until sometime during the afternoon of the same day, is prima facie suspect. The County's action on that date by three of its "top brass" is rife with hostility and animus toward Ramos for having invoked his Weingarten right.
Thus, for example, the Commission has on many occasions found "suspect" timing to be an important factor in assessing motivation, from which hostility or animus may be inferred.
University of Medicine and Dentistry of New Jersey, P.E.R.C. No. 86-5, 11 NJPER 447, 448, 449 ( & 16156 1985); Dennis Tp. Bd. of Ed. , P.E.R.C. No. 86-69, 12 NJPER 16, 18 ( & 17005 1985); N.J. Dept. of Human Services , P.E.R.C. No. 87-88, 13 NJPER 117, 118 ( & 18051 1987); City of Margate , H.E. No. 87-46, 13 NJPER 149, 152 ( & 18067 1987), adopted, P.E.R.C. No. 87-145, 13 NJPER 498 ( & 18183 1987); Essex Cty. Sheriff's Dept. , P.E.R.C. No. 88-75, 14 NJPER 185, 192 ( & 19071 1988); and Newark City Housing Auth., P.E.R.C. No. 93-10, 18 NJPER 432 ( & 23195 1991) at Note 9. Also, see Jim Causley Pontiac v. NLRB, 620 F.2d 122, 104 LRRM 2190, 2193 (6th Cir. 1980).
* * * *
It appearing, in summary, that CWA has met the three requisites in its burden of proof vis-a-vis a Section 5.4(a)(3) violation under Bridgewater,15/ I am pursuaded that this case presents a classic example of employer "pretext" or "sham" rather than the usual "dual motive" defense. It is, therefore, apposite to quote from Wright Line, supra , where the NLRB succinctly set forth the distinction between a "pretext" case and a "dual motive" case:
"In modern day labor relations, an employer will rarely, if ever, baldly assert that it has disciplined an employee because it detests unions or will not tolerate employees engaging in union or other protected activities. Instead, it will generally advance what it asserts to be a legitimate business reason for its action.
15/ Namely, the exercise of a protected activity by Ramos, the County's knowledge thereof and the County's having manifested the requisite hostility and/or animus toward Ramos' exercise of a protected activity.
Examination of the evidence may reveal, however, that the asserted justification is a sham and that the purported rule or circumstance advanced by the employer did not exist, or was not, in fact, relied upon. When this occurs, the reason advanced by the employer may be termed pretextual16 / Since no legitimate business justification for the discipline exists , there is, by strict definition, no dual motive ." (Emphasis supplied (105 LRRM at 1170). (Emphasis supplied).
The County's conduct in this case, particularly its "hostility and/or animus" (discussed at pages 20-24 above), fits squarely into the pigeonholes of "pretext" and "sham" as defined by the Board in Wright Line . The County's alleged justification for terminating Ramos was totally lacking in legitimacy and was, therefore, pretextual. The County's defense is, therefore, rejected as a sham.
* * * *
Based upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent County independently violated N.J.S.A . 34:13A-5.4(a)(1), particularly, when its representatives terminated Hiram G. Ramos, a provisional Security Guard, on April 11, 1991, because he twice requested union representation at a meeting with his supervisor.
16/ In like manner, the Commission concluded in UMDNJ , P.E.R.C. No. 86-5, 11 NJPER 447-449 ( 16156 1985) that "...we believe this failure to give notice prior to the non-renewal decision is strong evidence, at least under these circumstances, that the proffered business justification was pretextual. See, Morris., The Developing Labor Law, at 213-214 (2nd Ed. 1983)."
2. The Respondent County violated N.J.S.A . 34:13A-5.4(a)(3), particularly, when its representatives terminated Ramos for having engaged in the protected activity of requesting union representation at a meeting with his supervisor, and by the County's representatives' "suspect timing" in terminating Ramos within hours of the event.
RECOMMENDED ORDER
The Hearing examiner recommends that the Commission ORDER:
A. That the Respondent County 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 terminating employees such as Hiram G. Ramos because of his exercise of the protected activity of requesting union representation at a meeting with his supervisor, which when denied, was followed immediately by his termination on April 11, 1991.
2. Discriminating in regard to hire or tenure of employment to discourage employees in the exercise of the rights guaranteed to them by the Act, particularly, by precipitiously terminating employees such as Hiram G. Ramos because of his exercise of the protected activity of requesting union representation at a meeting with his supervisor on April 11, 1991.
B. That the Respondent County take the following affirmative action:
1. Forthwith restore Hiram G. Ramos to his position as provisional Security Guard; Ramos is to be made whole for all monies and fringe benefits lost by reason of his termination on April 11, 1991, subject to mitigation, plus interest pursuant to R.4:42-11(a) for each year. [The "back pay plus interest period" shall run from April 11, 1991 to February 13, 1992 (original scheduled hearing date) and, following a hiatus (1Tr8), shall continue to run thereafter from July 14, 1993 (first day of actual hearing) to date of reinstatment.
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 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.
3. Notify the Chairman of the Commission within twenty (20) days of receipt what steps the Respondent has taken to comply with this order.
Alan R. Howe
Hearing Examiner
Dated: March 21, 1994
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, paricularly, by terminating employees such as Hiram G. Ramos because of his exercise of the protected right of requesting union representation at a meeting with his supervisor on April 11, 1991.
WE WILL NOT discriminate in regard to 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 precipitiously terminating employees such as Hiram G. Ramos because of his exercise of the protected activity or requesting union representation at a meeting with his supervisor on April 11, 1991.
WE WILL forthwith restore Hiram G. Ramos to his position as provisional Security Guard and WE WILL make Ramos whole for all monies and fringe benefits lost by reason of his termination on April 11, 1991, subject to mitigation, plus interest pursuant to R.4:42-11(a) for each year. [The "back pay plus interest period" shall run from April 11, 1991 to February 13, 1992 (the original scheduled hearing date) and, following a hiatus (*1Tr8), shall continue to run from July 14, 1993 (first day of actual hearing) to date of reinstatement.
***** End of HE 94-19 ***** |