H.E. NO. 78-3 1.
H.E. NO. 78-3
STATE OF NEW JERSEY
BEFORE A HEARING EXAMINER OF THE
PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the Matter of
CAMDEN COUNTY BOARD OF CHOSEN FREEHOLDERS
(CAMDEN COUNTY HOSPITALS),
Respondent,
-and- Docket No. CO-77-269-125
COUNCIL 71 AND LOCAL 2307, AFSCME, AFL-CIO,
Charging Party.
Appearances:
For the Camden County Board of Chosen Freeholders
(Camden County Hospitals)
Vincent J. Paglione, Esq.
For the Council 71 and Local 2307, AFSCME, AFL-CIO
Joseph Asbell, Esq.
HEARING EXAMINER = S RECOMMENDED
REPORT AND DECISION
An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the A Commission @ ) on March 14, 1977 by Council 71 and Local 2307, AFSCME, AFL-CIO (hereinafter the A Charging Party @ or the A Council @ ), alleging that the Camden County Board of Chosen Freeholders (Camden County Hospitals), 1/ (hereinafter the A Respondent @ or the A County @ ) had engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, a amended, N.J.S.A. 34:13A-1 et seq., (hereinafter the A Act @ ) in that the County unilaterally, without prior negotiations with the Council and during a period of negotiations for a successor agreement, subcontracted out the laundry of the Lakeland Institution, operated by the County, which was alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1) of the Act.2/
It appearing that the allegations of the charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on May 20, 1977.
Pursuant to the Complaint and Notice of Hearing, a hearing was held on June 30, 1977 in Trenton, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Post-hearing briefs were submitted by the Charging Party and the Respondent respectively, July 15 and July 29, 1977.
An Unfair Practice Charge, as amended, having been filed with the Commission, a question concerning alleged violations of the Act, as amended, exists and, after hearing, and after the filing and consideration of briefs by 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 Camden County Board of Chosen Freeholders (Camden County Hospitals) is a public employer within the meaning of the Act, a amended, and is subject to its provisions.
2. Council 71 and Local 2307, AFSCME, AFL-CIO are public employee representatives within the meaning of the Act, as amended, and is subject to its provisions.
3. The Charging Party and the Respondent have been parties to a series of collective negotiations agreements, the current agreement being for a period of one year from January 1, 1977 through and including December 31, 1977 (J-2). The unit covered by the agreement includes, among others, employees in the laundry working under the titles of Laundry Worker and Senior Laundry Worker (Appendix to J-2). Typically, there have been approximately thirty (30) employees working in these two laundry classifications.
4. Negotiations between the parties for a successor agreement to the prior collective negotiations agreement (J-1) commenced in October 1976. Following several negotiations meetings for a successor agreement, a final agreement was consummated [consumated] in May 1977, which was approved by the County by resolution of May 3, 1977 and ratified by the Council. It was signed sometime in or about mid-May 1977 by both parties.
5. There is not and never has been a provision in any of the collective negotiations agreements with respect to subcontracting of unit work. The County did in late 1975 or early 1976 consider subcontracting out the laundry. This was opposed by the Charging Party and thereafter the decision to subcontract was abandoned by the County.
6. During the recent negotiations for a successor agreement (J-2), which commenced in October 1976, there was never any mention made by the County of a disposition or decision to subcontract the laundry. Nevertheless, by resolution dated March 15, 1977 (J-3), prior to the conclusions of negotiations for a successor agreement, the County awarded a subcontract of the laundry to Keystone Laundries and Exclusive Linens of Asbury Park, effective for one year, April 15, 1977 to April 15, 1978. This was done without notice to the Charging Party.
7. The Charging Party = s first knowledge of the County = s decision to contract the laundry came from a newspaper article in the Camden Courier Post. The President of the Council, Anderson E. Ways, upon obtaining this information from the newspaper contacted the Director of the Lakeland Institution, Dr. Urban, who confirmed the accuracy of the report in the newspaper. Mr. Ways next communicated with Mr. Simon, a Freeholder of the County, and advised Mr. Simon that he, Mr. Ways, intended to file a charge of unfair practices with the Commission. Mr. Simon indicated that this was agreeable to him and the matter should be resolved by the Commission or by the courts. Mr. Ways immediately filed the instant charge with the Commission.
8. As of the date of the hearing, June 30, 1977, the County had not implemented the subcontract to Keystone Laundries. Also, as of the date of the hearing, the County had offered to absorb by transfer to other positions at the Institution all of the affected employees in the laundry with no reduction in wages and without loss of seniority. Further, as of the date of the hearing, approximately eight (8) employees had voluntarily transferred from the laundry to other positions in the Institution.
THE ISSUE
Did the County commit an unfair practice within the meaning of the Act when it unilaterally, without notice to the Council, entered into a subcontract for the laundry during negotiations for a successor agreement and, if so, what should the appropriate remedy be?
DISCUSSION AND ANALYSIS
The Position of the Parties
It is the position of the Charging Party, Council 71, that the Respondent has committed a per se violation of ' (a)(1) and (5) of the Act by subcontracting the laundry during the period of negotiations for a successor agreement without collective negotiations or even notice to the Charging Party. The Charging Party cites, inter alia, NLRB v. Katz, 369 U.S. 736 (1962), Township of Stafford, P.E.R.C. No. 76-9 and Township of Little Egg Harbor, P.E.R.C. No. 76-15.
It is the position of the Respondent that it has not violated the Act, a alleged, for the reason that subcontracting was never used as a threat during collective negotiations and, further, no employee will suffer job loss through a reduction in salary or seniority since each employee is or has been offered a position elsewhere in the Lakeland Institution complex.
The Controlling Authorities and Decision
It is the opinion of the Hearing Examiner that the Respondent has violated ' (a)(1) and (5) of the Act under the authority of Township of Little Egg Harbor and Township of Stafford, supra .
As stated in Township of Stafford, supra, there can be no doubt that: A ...the impact of the decision to contract out as it affects terms and conditions of employment B - if not the decision B - is within the scope of negotiations... @ (Emphasis supplied)
The instant case is more clearly analogous [analagous] to Township of Stafford than Township of Little Egg Harbor, supra , in that the Respondent here did not even negotiate with the Charging Party over the decision to subcontract or its impact prior to the award of the subcontract. Not only did Respondent not negotiate, it did not even give notice to the Charging Party of its decision to subcontract. The Charging Party was left to find out through other means that the laundry subcontract had been awarded.
As was stated in Township of Little Egg Harbor, supra:
A ...no public employer may be permitted to take unilateral action with regard to a required subject for collective negotiations such as the decision to subcontract, absent extraordinary circumstances , until after all impasse resolution procedures (including mediation and fact-finding) have been exhausted. Public employees who comply with laws prohibiting strikes should be protected from unilateral actions taken by public employers concerning required, mandatory subjects for collective negotiations during the period leading up to the execution of a first agreement...as well as during the hiatus between the expiration date of an old agreement and the signing of a new contract. @ (Emphasis in original)
The Hearing Examiner finds no A extraordinary circumstances @ which would warrant a departure in the instant case from the general rule above-stated.
The Hearing Examiner further finds that the unilateral decision to subcontract the laundry in the instant case had a A chilling effect @ upon affected employees in the negotiating unit, notwithstanding that the employees affected were to be offered other jobs in the Institution complex without loss of seniority and without reduction in wages. The decision of the Respondent to make alternative employment available goes to the remedy which would otherwise be recommended in this case had the decision to subcontract been implemented and no alternative employment offered by way of mitigation.
The Hearing Examiner specifically rejects the twofold defense of the Respondent that it never used subcontracting as a threat during collective negotiations, and that no affected employee is to suffer loss of employment or seniority, or a reduction in wages.
Upon the foregoing and the entire record in this case, the Hearing Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent did have an obligation to negotiate in good faith with the Charging Party concerning the issue of subcontracting out of the laundry, and its action in refusing to do so constitutes a violation of N.J.S.A. 34:13A-5.4(a)(5).
2. The Respondent= s improper conduct, although not motivated by any specific anti-union animus, necessarily had a restraining influence and coercive effect upon the free exercise of the rights of the employees involved in this proceeding which are guaranteed by the Act and constitutes a derivative violation of N.J.S.A. 34:13A-5.4(a)(1).
3. The Respondent did not violate N.J.S.A . 34:13A-5.4(a)(3) and that portion of the complaint and charge is dismissed.
RECOMMENDED ORDER
Respondent, Camden County Board of Chosen Freeholders (Camden County Hospitals) is HEREBY ORDERED:
A. To cease and desist from:
1. Interfering with, restraining or coercing its employees in the exercise of the rights guaranteed by the Act.
2. Refusing to negotiate in good faith, upon request, with the Charging Party, Council 71, concerning the subject of subcontracting of the laundry work currently performed by members of the negotiating unit at the Lakeland Institution of the Respondent.
3. Unilaterally altering, or threatening to alter, the terms and conditions of employment of its laundry employees during the course of negotiations for a collective negotiating agreement with the Charging Party, Council 71.
4. Subcontracting out to Keystone Laundries and Exclusive Linens of Asbury Park, or from taking any other action with respect to subcontracting of the laundry work normally performed by employees in the negotiating unit during the course of collective negotiations with the Charging Party, Council 71.
B. Take the following affirmative action:
1. Upon request, negotiate in good faith with the Charging Party, Council 71, with respect to the decision to subcontract and the impact upon employees with respect to subcontracting of the laundry at the Lakeland Institution of the Respondent.
2. Post in the Lakeland Institution laundry, and any other locations where notices are given to employees, copies of the attached notice marked A Appendix A @ . Copies of said notice, on forms provided by the Commission, shall, after being signed by Respondent = s representative be posted by the Respondent immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material.
3. Notify the Chairman of the Commission, in writing, within twenty (20) days from the date of receipt of this Recommended Report and Decision what steps have been taken to comply herewith.
It is hereby recommended that the Commission order dismissal of that portion of the complaint which alleges that the Respondent violated N.J.S.A. 34:13A-5.4(a)(3).
/s/Alan R. Howe
Hearing Examiner
DATED: August 5, 1977
Trenton, New Jersey
1/ At the hearing, the name of the Respondent was amended from Lakeland Institution to the Camden County Board of Chosen Freeholders (Camden County Hospitals).
2/ At the hearing, the Charging Party was permitted to amend its charge to add additional violations of N.J.S.A . 34:13A- 5.4(a)(3) and (5) of the Act. These three subsections prohibit employers, representatives or their agents from: A (1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this Act. (3) Discriminating in regard to hire or tenure of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this Act. (5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employees in that unit, or refusing to process grievances presented by the majority representative. @
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