H.E. NO. 79-17

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

STATE OF NEW JERSEY,

Respondent,

-and-	Docket No. CO-77-77-61

LOCAL 195, INTERNATIONAL

FEDERATION OF PROFESSIONAL AND

TECHNICAL ENGINEERS,

Charging Party.

Appearances:

For the Respondent, John Degnan, Attorney General

(Guy S. Michael, Deputy Attorney General)

For the Charging Party, Rothbard, Harris & Oxfeld, Esqs. (Sanford R. Oxfeld, Esq.)

HEARING EXAMINER'S REPORT

AND RECOMMENDED DECISION

On October 22, 1976, Local 195 of the International Federation of Professional and Technical Engineers, AFL-CIO (IFPTE) filed an unfair practice charge with the Public Employment Relations Commission (Commission) alleging that the State of New Jersey has engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act (Act), as amended, N.J.S.A. 34:13A-1 et seq. Specifically, IFPTE alleges that Thomas Masterson was discharged from his position of employment because of his union activities as a shop steward, in violation of N.J.S.A. 34:13A-5.4 (a)(1), (2) and (3).

It appearing that the allegation of the charge, if true, might constitute an unfair practice within the meaning of the Act, a Complaint and Notice of Hearing was issued on November 19, 1976. Pursuant to the Complaint and Notice of Hearing, hearings were held on December 27, 1976, June 7, 1977, September 7, 1977, and October 28, 1977. The parties entered into a stipulation that if the Commission were to award back pay as damages, such damages would not run for the period between the first two hearing dates; that is, December 27, 1976, to June 7, 1977.1/

Thomas Masterson was hired by the Vineland State School on May 11, 1976, as an Operating Engineer I, Blue Seal. In the pay period ending August 13, 1976, Masterson was raised from Step I to Step V on the pay scale and received a retroactive pay raise. On August 19, 1976, Masterson was elected shop steward along with Russell Zeitel at an organizational meeting of Local 195. Up until this time, Masterson was apparently a satisfactory employee with no record of any disciplinary action. Shortly after Masterson became shop steward, there was a change in supervision of the operating engineers. Masterson and the new supervisor, Nestor Shilling, immediately became embroiled in a series of disputes and within a month's time Masterson was discharged.

On August 23, a notice was posted at the powerhouse where Masterson worked, stating that the Engineer in Charge of Maintenance, Mr. Herbert J. Muench, would be on sick leave for a minimum of two months. He would be replaced by Nester M. Shilling, who was designated as Acting Engineer in Charge of Maintenance with "responsibility and authority to carry out duties and responsibilities which previously had been handled by Mr. Muench."

Under the Rules and Regulations of the Mechanical Inspection Bureau (New Jersey Department of Labor and Industry, Division of Labor Standards) there are different level licenses corresponding to the size of the boilers at a given installation. The former chief engineer, Muench, held a Gold Seal or first-class license which qualified him to serve as chief engineer at any installation. Shilling held only a Blue Seal or third-class license, and under the rules of the Mechanical Inspection Bureau, he could not serve as a supervisor of power plants of the size of the two at the Vineland School since their size exceeded the limitations of the Blue Seal license. Similarly, other Blue Seal engineers could work at a boiler with a capacity which exceeded the limitation of their license only if their supervisor held the appropriate license.

On August 24, Masterson called Shilling and set up a meeting to discuss this licensing problem. Masterson testified that he brought two fellow workers, Kaminsky and Lewis, along with him. Masterson, who five days before had become shop steward, told Shilling that he wasn't there to file a grievance but just wanted to resolve this matter on an informal basis. According to Masterson, Shilling stated that since he (Shilling) had been appointed by the State the rule didn't apply to him - and that if Masterson caused him "any trouble, there would be job repercussions" and stated, "if you take the saber out of sword and rattle it (sic) or something to that effect and repeated, I know people in Trenton and I can take care of you."2/ When Shilling testified, he denied that he threatened Masterson and claimed that he told him Muench was still in charge.3/ But he was surprised when Lewis and Kaminsky also came since he only gave Masterson permission to come up to see him.

After this meeting with Shilling, Masterson went by himself to the School's Personnel Office and explained the problem to Ciancarelli, a personnel officer. He then called the State Mechanical Inspection Bureau and confirmed for himself what the State licensing requirements were. He then urged Ciancarelli to call the Bureau himself. Ciancarelli did so and on August 25 the personnel office sent out a memo to the effect that Muench still retained final responsibility for the operation of the powerhouse.4/

On Monday, August 30, Shilling told Masterson that he wanted Masterson to receive training at the Colony Powerhouse. Until this time Masterson had only worked at the main powerhouse. Masterson claimed that he was scheduled to have off on Wednesday and Thursday (September 1 and 2) and that he was given a choice between the two days. He told Shilling he would have to check with his wife to see if they had anything planned first. When Masterson went to work on Tuesday he told Shilling that he would go in on Wednesday and Shilling said okay.5/ Shilling testified he scheduled Masterson for either a Wednesday or Thursday - one of the two days - but couldn't remember which one (Vol. II, p. 140).

Masterson testified that on Thursday morning, September 2, Shilling telephoned Masterson at home and immediately started hollering. He threatened Masterson with job repercussions again. Masterson stated that Shilling was a "raving Maniac" on the phone and he couldn't recall whether Shilling mentioned switching days without approval or not.6/ After Masterson hung up on Shilling he called the State Police to file a complaint against Shilling for harassment. Masterson also called Ciancarelli in the personnel office at the school. Shilling's testimony concerning this incident is at odds with Masterson's. He claimed that he asked Masterson why he didn't go to the assignment on the date he was assigned, that Masterson asked him what was the difference. He did not threaten Masterson in any way (Vol. II, p. 125). Mrs. Muller, Shilling's secretary, said she could overhear all of Shilling's telephone conversation from where she sat and Shilling did not use obscenity or threats on the phone during this period, but she could not recall the specific conversation. She admitted that Shilling has a strong, loud voice so that it sometimes sounds like he's raising his voice.

That afternoon Masterson went to the electrical shop at the school to talk to Russ Zeitel, the other shop steward, to discuss the possibility of filing a grievance concerning this phone call, for Zeitel had the only copy of the contract. Around 12:20 p.m. they were going over the contract when John Davis, Zeitel's immediate foreman, came in and asked them what they were doing. They explained that they were discussing a grievance. Since it was Zeitel's lunch break, Davis permitted them to continue and left. A short time later Shilling came in with two other supervisors. Shilling told Masterson to leave because he was disturbing his employees and repeated this when Masterson said he was trying to file a grievance. Both Masterson and Zeitel thought there was going to be a fight. Shilling said he didn't recall seeing Masterson at the school that day; he might have, but would have to look at the records.

On September 3rd, Masterson received an official reprimand listing these incidents. It accused Masterson of calling in another employee, Mr. Panichello, to cover for Kaminsky when Kaminsky accompanied Masterson at the August 24th meeting with Shilling and also changing his work assignment by coming in for training on Wednesday, September 1st, rather than Thursday, September 2nd, without prior authorization or even apparent notification of his supervisor. The third incident occurred before Shilling became Materson's supervisor. The reprimand stated that Masterson improperly operated the boiler in the main boiler house on August 16. Masterson was accused of this action on the basis of charts which record the operation of the boilers.

The testimony concerning these charts was technical and highly contradictory. Essentially, there are two recording gauges on the boiler in question. The Bristol Recording Pressure Gauge records the steam pressure at the boiler header ( a header is a central pipe to which other distribution pipes are attached) and the Hagan Ring Balance Meter records the flow and temperature of steam as well as the air/fuel ration in the boiler. Both of these circular charts are driven by clock motors and are calibrated for time. As they revolve, pens record the level of pressure, flow, etc. of the steam. One, therefore, can "read" the condition of the boilers at any moment in time. It is undisputed that on August 16, while Masterson was on duty, the boiler header valve, which controls the flow of steam into the system, was shut down to make repairs to the steam pipes and then reopened. The proper procedure to restore steam into a system is to just barely open or "crack" the valve and thereafter limit the flow of steam so that it will take one to two hours before full steam flow and pressure is restored to the system, for a fast surge of steam into the system can be highly destructive.

Shilling testified that the charts indicated that Masterson improperly opened the valves of the boiler; both the Hagan Ring Balance Meter and the Bristol Recording Pressure Gauge indicated an extremely rapid rise in the flow and pressure of steam into the system.

The State called Albert Dix, the assistant chief of the State Department of Human Services, as an expert witness. His interpretation of the charts was in accord with Shilling's for he also testified that the boiler was improperly operated.

Masterson maintained that the Hagan charge indicated a sharp rise because he had just bled the control off and this gave a misleading reading. He did not operate the control improperly and Muench, who was Chief Engineer at that time, was present when he opened the steam valves. Masterson contends it was Muench's duty to stop him and take over if he did anything wrong (Vol. I, p. 57); However, David Monteleone, a plumber foreman, testified that he saw Masterson open the valves in less than five minutes and Muench didn't walk into the powerhouse until after the valve had been turned back on.

Masterson further maintains that the recording charts are inaccurate and the controls were bad for many months. The powerhouse report of August 29, 1976, states that "the Hagan controls were going screwy" (Vol. IV, p. 40) and on the sign-in chart from August 1976 there is a notation that Muench wrote to Hagan on August 19, 1976, requesting that they send someone to adjust the controls.

As noted above, Shilling was not supervisor on August 16. Shilling testified that he became aware of the improper operation of the boiler three months to see how the boilers were being operated. Shilling could not, however, remember when he first looked at the charts.

On the same day Masterson received the reprimand, Kaminsky, a fellow employee, was on duty and got something in his ear. It was around 10:30 p.m. and Kaminsky called Shilling, who called Panichello to come in and then tried to call the infirmary. Panichello had already left since he was due in at 11 p.m. Shilling testified that while trying to call the infirmary, Masterson called him twice, insisting that he be allowed to relieve Kaminsky, which made it difficult for Shilling to get through to the infirmary (Vol. II, p. 129). Masterson called the operator and the operator broke into the conversation Shilling was holding at the time (Vol. III, p. 22). Shilling also testified that he told Masterson the first time that he was trying to get through to the hospital because someone had a bug in their ear but then Shilling testified that he didn't tell Masterson what was happening (Vol. III, p. 51).

On September 15th Shilling sent Masterson a memo stating that Hansen, a fellow engineer in the powerhouse, had found the air tank for the diesel generator empty when he relieved Masterson. (The compressed air in the tank is used to start the generator if there is a power failure. If there is no air in the tank, then the generator could not be started.) Shilling testified that Hansen called him as soon as Hansen got on duty, and Hansen said the air tank was empty, that he went over there immediately and saw the gauge was on zero, and that Masterson had made no entry into the log.7/ Masterson had claimed that the tank was full and everything was okay when Hansen relieved him; otherwise, Hansen would not have assumed responsibility of the boilers after his preliminary check of the boiler room. Masterson further claimed that Hansen and Shilling were good friends, that as far as he was concerned they "concocted the whole damn thing to try to write me up for something else."

Masterson filed a grievance on September 15th concerning the letter about the empty air tank had received from Shilling earlier that day. Shilling then sent Masterson a memo dated September 17th stating that the letter of September 15th was merely a memo and not an official disciplinary action, that Masterson's grievance concerning this letter would be handled on this basis.

Masterson was very active as a shop steward in the month's time he held that position. He filed eleven grievances and these were handled by Shilling. In a number of these grievances Masterson himself was the grievant. Masterson charged Shilling with harassment for inappropriately withholding overtime from him, for not giving him the minimum 48-hour notice of a change in shift, with failure to follow the grievance steps and outright disregard for same, and with denying Masterson his rights.

On September 27th Masterson was sent a letter notifying him that he was to be discharged.

ANALYSIS

The resolution of this matter must rest upon credibility judgments concerning the testimony of Shilling and Masterson.

When Masterson received the letter of discipline, one of the items related to the first meeting between Masterson and Shilling where Masterson questioned whether Shilling could assume the role of supervisor. Shilling accused Masterson of calling in another employee, Panichello, to cover for Kaminsky, but when Shilling first testified on June 17th he admitted he merely assumed it was Masterson who called in Panichello and made no inquiry into the facts. Masterson testified that he never called in Panichello. On a subsequent hearing day, September 7, 1977, Shilling said Panichello told him some time after the prior hearing date that Masterson had called Panichello at work on August 23rd and asked him to come in the following day. However, Shilling then testified that this conversation had to have taken place before the June 7, 1977, hearing because he knew then how Panichello came to be at the boiler house. When asked why he didn't give that answer to the question the first time, he testified that he didn't know if the question has been asked.8/ The undersigned is satisfied that Shilling merely assumed that Masterson called Panichello to come to work. Shilling's presumption about Masterson shows a certain antagonistic predisposition; there was not an evenhanded attempt by Shilling to investigate the incident. This predisposition combined with Shilling's inconsistency leads the undersigned to accept the testimony of Masterson that Shilling did make reference to "saber rattling" and otherwise threatened Masterson. Such threats would be consistent with Shilling's demeanor as observed by the undersigned. Shilling clearly respected and, in turn, demanded discipline. On a number of occasions he referred to the need for employee to follow order as well as his own willingness to do so. It must not be forgotten that Shilling has been working at Vineland School for approximately 20 years, and Materson's questioning Shilling as to his capacity to serve as a supervisor had to be perceived as a threat to his recent advancement. Masterson was a subordinate under Shilling's control yet Masterson was telling Shilling he could not have his recent promotion. In his doing so, Masterson was engaged in protected activity within the meaning of the Act. Although Masterson stated he didn't want to file a grievance concerning this matters, it was clear he met with Shilling in his capacity as shop steward. Shilling claimed that at the time of this meeting he did not know Masterson was shop steward. This testimony in unconvincing. Even if Shilling did not know it before the meeting, and Masterson did not tell him, Shilling certainly would have realized it from the conversation. Masterson certainly was there representing the interests of all the stationary engineers at the school. To take a disciplinary action against an employee because he participated in protected activity would clearly be violative of §5.4(a)(1)of the Act. See City of Hackensack v. Hackensack Fire Fighters Local 2081, IAFF, AFL-CIO, P.E.R.C. No. 78-71, 4 NJPER __ (¶__, 1978), appeal pending App. Div. Docket No. A-3562-77.

The second incident in the reprimand concerned Shilling's phone call to Masterson on September 2nd. Shilling's account of this incident is more logical than Masterson's. Why else would Shilling call Masterson at home on his day off if something didn't happen to arouse Shilling's ire. Even Masterson's version of the phone call makes more sense if Shilling believed that Masterson was supposed to go for training on Wednesday, but he went on Thursday instead. The Hearing Examiner finds that Shilling did believe that Masterson did not report on the assigned day. However, Masterson was only supposed to receive instruction in the other boiler room. He was not to relieve anyone who was assigned duty and, at worst, this incident constituted a harmless misunderstanding. As to the phone call, the truth probably lies somewhere between the two versions. What is questionable in the undersigned's mind is that on the day after the phone call, Masterson received the reprimand which accused him of improper actions which occurred before Shilling became supervisor.

The undersigned is satisfied that the expert witness of the State testified in good faith that the boiler was improperly operated. However, there are several areas of uncertainty. Why wasn't Masterson reprimanded at the time the event happened? Muench, his supervisor, was in the powerhouse and on duty, if not at the moment when steam was returning to the system, then shortly thereafter. Yet, no disciplinary action was taken at that time but rather only when Shilling brought it up three weeks later. Masterson testified that the charts were not functioning properly and Muench wrote to Hagan around this time asking to have someone come in to adjust the controls. The charts introduced by the State into evidence to show what a proper return of steam to the system should look like was dated September 8, 1973. It was three years older than the chart in question and the undersigned cannot help wonder why the State had to go back so far in time to find a chart that shows the correct operation of the boiler if the meters were working properly at the time of Masterson's discharge. It is more than coincidental that Masterson should be disciplined at this particular time so shortly after his run-in with Shilling. As to the other incidents discussed earlier, Shilling did not recall Masterson's meeting with Zeitel in the electrical shop on the day Shilling made the phone call to Masterson. Nor was Masterson ever disciplined for this meeting. There is no reason to assume that this incident played a part in his discharge. Similarly, when Panichello had to go to the infirmary for an ear ache and

It would be hard to see how this incident played a part in the discharge. As to the empty air tank, the Hearing Examiner cannot accept Masterson's contention that Shilling and Hansen conspired to concoct such a story. What is noteworthy, however, is that after Masterson grieved the letter of reprimand, Shilling sent a memo to Masterson stating that the original letter to Masterson complaining of his negligence was only a memo and not an official disciplinary action.

While the undersigned cannot substitute his business judgment for that of the State, the proffered reasons for their actions must be examined in order to determine if they are pretextual or legitimate. The undersigned cannot say they are legitimate.

Given Shilling's less than total candor as a witness, his testimony cannot be unreservedly accepted. Based on the entirety of the evidence and particularly in light of the timing of the incidents involved, the questions surrounding the steam charts and the relatively minor nature of Masterson's other infractions, the undersigned believes that Shilling was "out to get Masterson" since their first meeting. Masterson apparently is not an easy person to get along with. At the hearing he proved to be argumentative and headstrong. A good deal of Shilling's actions may very well have been based upon conduct not protected by the Act. But one cannot carve out or separate the various motivations here. They all blend and become inextricably intwined.

Shilling allowed his feelings of animosity toward Masterson, which were kindled by Masterson's protected activity, to interfere with his evaluation of Masterson and became one of the factors in this evaluation in violation of §5.4 (a)(1) and (3) of the Act. See In the Matter of Haddonfield Board of Education, P.E.R.C. No. 77-31, 3 NJPER 71 (1977) and City of Hackensack v. Winner, Sarapuchiello and Krejsa, P.E.R.C. No. 77-49, 3 NJPER 143, reversed App. Div. Docket No. 2546-76; pet. For cert. filed by respondent.

Although Ciancarelli and Gesty testified that the decision to fire Masterson did not reset with Shilling, the State relied on Shilling's evaluation and made no real attempt to investigate his accusations. It therefore follows that since Shilling's evaluations are tainted then the State's action is likewise tainted. In the Matter of North Warren Regional Board of Education, P.E.R.C. No. 79-9, 4 NJPER __(1978).

Accordingly, the undersigned will recommend to the Commission that they issue the following order that the Respondent shall

1. Cease and desist from interfering with employees in the exercise of rights guaranteed by the New Jersey Employer-Employee Relations Act and discriminating in regard to hire or tenure of employment to discourage employees in the exercise of rights under the Act by discharging Thomas Masterson;

2. Offer to Thomas Masterson a position of Stationary Engineer at the Vineland State School at a salary level under the contract consistent with the level he would be at had he not been discharged on September 27, 1976.

3. Reimburse Thomas Masterson monies he would have earned from September 27, 1976, to the time of compliance if he were not discriminatorily discharged, exclusive of the period from December 27, 1976 to June 7, 1977, less severance pay and less all monies actually earned by Mr. Masterson during the time, excluding the period of December 27, 1976 to June 7, 1977.

4. Post in a prominent place at the Vineland State School copies of the attached notice. Copies of said notice, on forms provided by the Commission, shall, after being signed by the Respondent's representative, be posted for a period of at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent to ensure that such notices are not altered, defaced or covered by any other material.

Edmund G. Gerber

Hearing Examiner

DATED: Trenton, New Jersey

October 5, 1978