H.E. NO. 99-12

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

RAHWAY VALLEY SEWERAGE AUTHORITY,

Respondent,

-and-	Docket No. CO-H-97-21

OIL, CHEMICAL AND ATOMIC WORKERS

INTERNATIONAL UNION, AFL-CIO,

LOCAL 8-149,

Charging Party.

Appearances:

For the Respondent, Stanton, Hughes, Diana, Salsberg, Cerra & Mariani, attorneys

(Richard M. Salsberg, of counsel)

For the Charging Party, Kevin Kiernan, attorney

HEARING EXAMINER'S REPORT

AND RECOMMENDED DECISION

On July 19, 1996, the Oil, Chemical and Atomic Workers International Union, Local 8-149, filed an unfair practice charge with the Public Employment Relations Commission alleging that the Rahway Valley Sewerage Authority discriminatorily laid off John Vanco, a shop steward, out of seniority, rather than using established disciplinary procedures. On June 24, 1996 and to the present, the Authority has refused to bargain in good faith with the Union over a procedure for layoff and recall of employees. Further, on June 21, 1996, the Authority laid off Kevin Thompson in retaliation for the Union exercising its lawful right to

arbitrate a grievance. It is alleged that this conduct was violative of N.J.S.A. 34:13A-5.4a(1), (3), (4), (5) & (7) of the New Jersey Public Employment Relations Act1/

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 February 19, 1997. The Authority filed an answer to the Complaint on February 28, 1997, in which it admits that it laid off John Vanco and Kevin Thompson and the Union did seek to bargain over layoff procedures but it denied all the other allegations of the Complaint. The Authority alleges the Complaint fails to state a claim upon which relief can be granted, the Authority's actions were good faith managerial prerogatives and its actions were in conformance with and satisfied its contractual obligations and applicable law.

1/	These provisions prohibit public employers, their representatives or agents from: "(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act. (3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this act. (4) Discharging or otherwise discriminating against any employee because he has signed or filed an affidavit, petition or complaint or given any information or testimony under this act. (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. (7) Violating any of the rules and regulations established by the commission."

A hearing was held on June 10, 1998, at which time both parties were given an opportunity to examine and cross-examine witnesses, introduce evidence and argue orally. Both parties filed briefs which were received by September 2, 1998.

FINDINGS OF FACT

1. The parties are signatories to a collective negotiations agreement which was effective from July 1, 1995 through June 30 1998. It provides, in pertinent part:

Article V, Management Rights:

A. The Authority hereby retains and reserves unto itself, without limitation, all powers, rights, authority, duties and responsibilities conferred upon and vested in it prior to the signing of this Agreement by the Laws and Constitution of the State of New Jersey and of the United States, including, but without limiting the generality of the foregoing, the following rights:

....

B. The exercise of the foregoing powers, rights, authority, duties and responsibilities of the Authority, the adoption of policies, rules, regulations and practices in furtherance thereof, and the use of judgment and discretion in connection therewith shall be limited by the terms of this agreement provided those terms are in conformance with the Constitution of the State of New Jersey, the Constitution of the United States, the laws of the Sate of New Jersey and of the United States, and Court decisions of the State of New Jersey and of the United States.

Article VIII, Seniority:

B. Seniority Termination

Any employee shall be considered discharged and terminated from his/her employment effective when the employee resigns; the employee is discharged; the employee is laid off for a period in excess of one (1) year; upon a leave of absence (not caused by accident or illness) being extended without approval beyond ninety (90) days; upon absence without leave in excess of three (3) consecutive working days without calling in and without justifiable reasons for not calling in and upon failure of an employee to accept a recall, in writing, from a lay off within one (1) working week after receiving notice of recall from the Authority.

2. The Authority is governed by a Commission with 10 members, one member from each town the Authority serves. Richard Tokarski serves as the executive director of the Authority. He is responsible for the personnel functions of the Authority.

3. In March 1994, the Authority eliminated two older titles and placed five employees into the new title of process operator. It was the Authority's contention that many of the former duties of the two old positions had been eliminated so the new job was comparable in terms of both work and responsibility. Therefore, it did not believe that the new position warranted a higher salary. The Union, however, believed that the new job was more demanding and sought to negotiate a higher wage rate. The Authority set its own rate for the new classification as per the collective negotiations agreement. The parties negotiated for a new wage rate but did not reach an agreement. The Union grieved and pursuant to the contract, filed for arbitration of the rate of pay for the new process operator position. On August 6, 1996, an arbirator found the rate

of pay established by the employer was appropriate and dismissed the Union's grievance.

4. The Authority, at the direction of its Commissioners has been cutting costs for seven years. A number of procedures have been automated and services were outsourced (T66, T70). The number of employees in the unit has declined from 40 in 1992 to 27 at the time of the hearing (R.12 in evid.; T70).

5. When the new process operator position was first posted in October 1994, there were eight employees in the old titles. All eight employees bid on the five new positions. On November 12, 1993, the Union was notified that the creation of the new process operator position might result in layoffs (T42). The five new positions were filled on the basis of seniority (R-5 in evid.). The three remaining employees were temporarily assigned to the maintenance labor job classification. Subsequently, one resigned or "took an opportunity to resign" (T63), one successfully bid on a different vacant position and one, Kevin Thompson, remained temporarily assigned.

6. Tokarski believed that Thompson was not needed in the maintenance position but was carried for some time in the hope that a position would become available for him. Although Mark Dudzic, the President of Local 8-149, testified that the Authority gave a commitment to the union that there would be no layoffs, he also admitted that, in November of 1993, the Authority notified the Union, that there might be layoffs (T42, T75). The Union knew

Thompson's position was not secure. In the 1995 negotiations for the current contract the Union sought to have the Authority create a permanent position for Thompson. The Authority suggested that the Union not push this issue for the Union might not like what it might do if it had to take action on Thompson. The Union did not seek to negotiate procedures for a layoff in the 1995 negotiations (T29, T30).

7.	In early May, 1996, there was a meeting between the Union and the Authority. The Union was represented by Mark Dudzic, Lawrence Graham, an international representative, and Glen Smith, the Local's chief shop steward. The Authority was represented by Richard Tokarski and Andy Doyle, the assistant director. The Authority contended that the Authority's commissioners were talking about budget constraints and cutbacks might be needed. There had to be a more productive and cooperative atmosphere at the Authority. The Authority was concerned about the large grievance load. It was agreed that the parties enter into a labor-management cooperation program to improve the atmosphere at the Authority. Graham contacted PERC and steps were taken to initiate such a program.

7.	A month later, in June of 1996, while Graham was attempting to set up a cooperative program, he was contacted by the Authority. An employee, John Vanco, was accused of insubordination and the Authority wanted to conduct an investigatory interview of Vanco. Both of the Union's shop stewards were on vacation and Vanco wanted Union representation. Graham represented Vanco at the

interview. At the end of the week, on June 14, 1996, Vanco was laid off. Vanco was just made assistant shop steward in April or May of 1996 (T113). There had never been a layoff under the contract before (T32-33, T78) and the Authority did not indicate at the May meeting that it was contemplating an imminent layoff (T33).

8.	The record does not establish that the Authority knew that Vanco was a shop steward at the time of his layoff. There was no written notification to the Authority of Vanco's Union office.2/ Tokarski denies he was aware of Vanco's new position (T78). Vanco testified, "if I recall, there were a few grievances written up that I turned in for the Union" as a shop steward (T.114). However, no record of such grievances were ever introduced into evidence. Vanco's testimony was evasive, particularly as to his own disciplinary history (T116) and I do not credit his testimony. Accordingly, although Vanco claims he had quite a few conversations with plant supervisor Arthur Wright in connection with his being shop steward (T114), I cannot accept his testimony. Vanco was called as a rebuttal witness at the end of the hearing and Wright was not present at the hearing.

9.	The following Monday, June 17, 1996, Graham called Tokarski and asked why Vanco was laid off while they were trying to set up a program to improve the parties' relationship and avoid layoffs. Tokarski responded that the Authority believed it was

2/	CP 1 was written after Vanco's layoff.

overstaffed in maintenance and decided to layoff Vanco. Graham further testified that Tokarski also said if the Union did not drop the arbitation concerning the rate of pay for process operators (scheduled to be heard in July, 1996), there were probably going to be more layoffs (T14).

10.	Tokarski did not deny the conversation took place. However, he denied he threatened to terminate Thompson if the Union proceeded to arbitration (T75-T76) and he did not recall when he had the conversation (T92-T93). He testified that he told the Union if there was going to be a substantial increase in the hourly rate, it would negatively impact the Authority's budget and other changes would have to be made.

I found Graham's testimony to be forthright and candid while Tokarski's testimony as to the conversation was ambiguous. He never specifically denied he threatened more layoffs if the arbitration was not withdrawn. Rather, he denied he threatened to lay off Thompson. Accordingly, I find Tokarski threatened to lay off employees if the Union did not withdraw the arbitration.

11. One week later, on June 21, 1996, Kevin Thompson was laid off (T82).

12. Tokarski testified that the decision to layoff Thompson was made prior to his conversation with Graham. He had asked Plant Superintendent Wright to evaluate the staff and determine if there was someone that was not needed. Wright recommended Thompson. He was not in a permanent position and the

Authority was always trying to find work for him (T84). In support of this testimony, the Authority introduced a memo from Wright to Tokarski, R-14 in evidence, dated June 11, 1996 and a memo from Gary Fortner to Wright, R-15 in evidence, dated June 12, 1996. The Union points to document numbers which appear on R-14 and R-15 immediately below the secretary identification line. It argues that these number are out of sequence. R-14 is dated June 11, 1996 and numbered 2811P while R-15 is dated June 12, 1996 but numbered 2803P. According to the Union, this shows R-14 was altered by backdating to make it appear that the decision to lay off Thompson was made prior to Tokarski's threat to Graham.

These documents were apparently typed by different secretaries as the initials on the secretary identification line are different. No evidence was introduced by the Union to establish how or when the document identification numbers were assigned.3/ This inconsistency in document numbering raises a question as to the alteration, but does not prove alteration. Significantly, R-15, Fortner's memo to Wright is not in dispute and this document demonstrates that the Authority was actively considering layoffs on June 11, 1996. R-14 and R-15 buttress Tokarski's testimony that the decision to layoff Thompson was made prior to his conversation with

3/	It is possible that R-15, a letter to Wright as to the feasibility of reducing the maintenance staff was misdated when first typed. R-14, a letter from Wright to Tokarski recommending layoff, would seemingly have been written after R-15.

Graham. I credit exhibits R-14 and R-15 and Tokaski's testimony and find the Authority made its decision to layoff Thompson before Graham's conversation with Tokarski on June 17, 1996.

On June 18, 1996, the Union demanded the Authority bargain with the Union for mutally agreeable procedures for layoff and recall of bargaining unit members (CP-1 in evid.). On June 24, 1998, the Authority notified the Union that it believed it had no obligation to bargain over such procedures and refused to negotiate.

ANALYSIS

The Union argues that the Authority committed an unfair practice when it refused to negotiate procedures for layoff and recall. The Union acknowledges that the Authority has the right to make layoffs. However, since the contract is silent as to the procedures for layoffs, the Authority had the obligation to negotiate.

The Authority argues that the contract contains certain procedural rights regarding recall from layoff in Article VIII B, Seniority Termination. This language, when read with Article V, Management Rights, grant it the contractual right to layoff and it has no obligation to negotiate the procedures for the layoff.

Since Article VIII B grants recall rights from layoff, it must be inferred that layoffs could take place. Significantly, in November 1994, the Authority notified the Union that there was a possibility that layoffs might occur. Although the Union sought to

negotiate job security for Thompson in the subsequent negotiations it never sought to negotiate layoff procedures. Even assuming Dudzic was reassured that Thompson would not be laid off, under these circumstances, the Union waived its right to negotiate procedures for layoff. Township of Middletown P.E.R.C. No. 98-77, 24 NJPER 28 (¶29016 1997).

Tokarski threatened Graham that more layoffs would occur if the outstanding arbitration was not withdrawn. The Union did not withdraw the arbitration and Thompson was laid off. This action was designed to discourage the exercise of a protected right within the meaning of the Act--the right to use the contract's grievance procedure. However, the decision to layoff Thompson had actually been made before the threat was made.

Under In re Bridgewater Tp., 95 N.J. 235 (1984), to find a violation of 5.4a(3) of the Act, the charging party must prove, by a preponderance of the evidence on the entire record, that protected conduct was a substantial or motivating factor in the adverse action. The refusal of the union to withdraw the salary grievance from arbitration was a motivating factor for Thompson's layoff.

However, the record also demonstrates other motives contributed to the layoff. In a dual motive case such as this, the employer will not have violated the Act if it can prove, by a preponderance of the evidence on the entire record, that the adverse action would have taken place absent the protected conduct.

The decision to layoff Thompson was made before Tokarski threatened Graham and the decision, at least in part, was legitimately designed or motivated to reduce the size of the workforce to lower costs. Dual motivations existed at the time of Thompson's discharge. Accordingly, I find the Authorty did not violate the Act and will recommend the Commission dismiss the unfair practice charge.

RECOMMENDATION

I recommend the Complaint be dismissed.

Edmund G. Gerber

Hearing Examiner

Dated: November 20, 1998

Trenton, New Jersey