H.E. NO. 87-28

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

TOWNSHIP OF SOUTH BRUNSWICK,

Respondent,

-and-	Docket No. CI-86-18-92

THOMAS GLAPION,

Charging Party.

Appearances:

For the Respondent, Mark S. Ruderman, Esq.

For the Charging Party, Daniel J. Hussey, Esq.

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission ("Commission") on October 28, 1985, by Thomas Glapion ("Charging Party") alleging that the Township of South Brunswick ("Township") violated §§5.4(a)(1) and (3) of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ("Act") by removing him from directing the Township's Crime Watch Program allegedly because of the exercise of his protected activity

including the performance of his duties as President of the Policeman's Benevolent Association Local 166 ("PBA").1/

A Complaint and Notice of Hearing was issued on January 9, 1986. On January 14, 1986, the Township advised us that it was relying on its November 5, 1985 statement of position as its Answer to the Complaint. In its Answer the Township argued that it did not remove Glapion from the Crime Watch Programm because of his union activities, and it argued that the assignment and reassignment of personnel is a managerial prerogative.

A hearing was held in this matter on April 14, 1986 at which the parties had the opportunity to examine witnesses, present evidence, and argue orally. Both parties filed post-hearing briefs, the last of which was received on June 16, 1986.

An UPC having been filed with the Commission, a question concerning alleged violations of the Act exists, and after hearing and consideration of the post-hearing briefs, this matter is appropriately before the Commission by its designated Hearing Examiner for determination.

Upon the entire record I make the following:

FINDINGS OF FACT

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; and (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."

1.	The Township of South Brunswick is a public employer within the meaning of the Act.

2.	Thomas Glapion is a public employee within the meaning of the Act and has been employed by the Township as a patrol officer since February 1982.

3.	Beginning in 1980 patrolman Scott Hoover directed a program known as Operation I.D. which involved his talking to students and other people in the community about crime avoidance and home security. (Transcript "T" pp. 96, 111, 112). Hoover performed that function on a voluntary basis without additional pay, but he did receive compensatory time for any program related work he did on his own time (T p. 113). Hoover directed Operation I.D. until 1983 at which time the program was discontinued because Hoover was getting married and wanted to build a house (T p. 96).

Later in 1983 Glapion approached Chief Simmons and asked if he (Glapion) could implement a Crime Watch Program (T p. 32). The Chief approved of the program and directed Glapion to report to Sgt. Joseph Duca for supervision in directing the program (T p. 33). As was the case with Hoover, Glapion performed Crime Watch responsibilities on a voluntary basis without any additional salary or benefits, but did receive compensatory time for any of his own time spent working on the program (T p. 119). There was no material difference between Operation I.D. and Crime Watch (T p. 112).

4.	In early 1984 Glapion was elected President of PBA Local 166, and latar in 1984 he was the PBA's chief negotiator during negotiations for a new collective agreement (T p. 16).

After he became PBA President, Glapion was also responsible for processing many PBA grievances. The parties' grievance procedure provided that grievances by individuals first go to an individual's supervisor, but PBA grievances were filed directly with the Chief. Any grievance could then go to the Township Administrator, then the Township Council, and then to arbitration (T p. 31).

In mid-1984 Glapion processed a grievance concerning educational incentives and employee Santowasso.2/ That grievance was eventually moved to the Township Administrator, Jerry Bittner, in late 1984 (T pp. 54, 57). Bittner apparently denied the grievance based on timeliness (T p. 62). The grievance then moved to the next step and Bittner, in December 1984, apparently told Glapion that he (Bittner) was "miffed" over that grievance. On December 10, 1984 Bittner sent Glapion a letter (Exhibit CP-3) explaining that he had been "miffed" over that grievance because most grievances had been resolved at his level and did not go to the Council. There were, however, no threats or refusals to process grievances in CP-3. If anything, CP-3 was written in the spirit of cooperation to improve the parties' relationship. Bittner made no further reference to that incident in his subsequent meetings with Glapion (T pp. 56-57).

2/	The Charging Party did not clearly show whether the education related grievance, and the Santowasso grievance were the same, or two different grievances (T pp. 54-62). It appears that it was one and the same grievance.

5.	In late 1984 a Township resident, Ellen Thompson, complained to Mayor Monroe that she was having trouble contacting Glapion regarding the establishment of a crime watch program in her neighborhood (T pp. 152, 166). Monroe asked Chief Simmons to tell Glapion to contact Thompson, and although the Chief did so, Glapion failed to contact Thompson, and the Chief then had to remind Glapion to speak to her (T pp. 102-103).

6.	In early January 1985 Sgt. Duca asked Glapion to prepare an overview of the Crime Watch Program (T pp. 36-37). Glapion complied with that request, and his overview of the program combined with Duca's overview of the program were eventually forwarded by Duca to Chief Simmons on January 31, 1985 (Exhibit CP-4).

7.	Between October 1984 and February 1985 the efficiency of the Township's Police Department was being reviewed by an independent consultant, Edward Palardy, who issued the "Palardy Report" in February or March 1985 (T pp. 28, 114). The Report made some criticisms of the Department, and some recommendations to improve Department responsiveness, including making the Crime Watch Bureau a full-time position (T pp. 67, 103). Glapion was interviewed by Mr. Palardy during the Department's review and criticized the administration, but he also testified that he was not aware that any of his comments got back to anybody in the administration (T p. 29).

8.	In May 1985 a local South Brunswick newspaper, the Central Post, printed two articles (Exhibits CP-1 and CP-2) regarding issues between Glapion and the Township. In CP-1 it was reported that Glapion said that the Township had thrown "a monkey wrench" into negotiations regarding longevity pay, and it was reported that Mayor Monroe disagreed with Glapion's statement. In CP-2 Glapion reportedly agreed with the finding in the Palardy Report that recommended the hiring of additional police officers. It was also reported that Glapion placed the blame for the Department's shortcomings on Chief Simmons and Township Administrator Jerry Bittner.

A few days after CP-1 and CP-2 appeared in the newspaper the Council considered the Santowasso grievance. One councilman was opposed to listening to the grievance at that time due to Glapion's reported comments in CP-1 and CP-2 (T pp. 24, 58), but the grievance was eventually denied by the Council based upon timeliness thus upholding Bittner's previous denial of the grievance for the same reason (T pp. 59-62).

Also shortly after CP-1 and CP-2 appeared in the newspaper Glapion went to Monroe's house to engage in some informal negotiations (T pp. 26-27). Glapion testified that Monroe was infuriated about the newspaper articles and that Monroe allegedly explained that it was his policy to evaluate infuriating news for two or three days and then determine what action to take (T p. 27). During that conversation Glapion alleged that Monroe told him that

he (Monroe) could crush him (Glapion) like a bug, and that he (Glapion) should not publicly criticize the Chief (T p. 27).

Monroe denied being infuriated about CP-1 and CP-2 and vigorously denied telling Glapion he could crush him like a bug (T pp. 150-151). Monroe explained that he is a diplomatic person and does not use such expressions and knew that he would often be meeting with Glapion and would never make such a comment (T p. 151). I credit Monroe's testimony. It would not have made sense for him to make such a comment. Monroe testified that he does not always believe newspaper articles and he knew that he would often be meeting with Glapion in the future (T 2 pp. 150-151). Therefore, it is not likely that Monroe would make such a remark and jeopardize his relationship with Glapion. Having observed Monroe's demeanor while testifying, I credit his testimony.

9.	The recommendation in the Palardy Report that the Crime Watch Program be staffed on a full-time basis led to the Township's posting of a notice in the Spring of 1985 asking employees interested in serving on the Crime Watch Program to sign below (T pp. 38, 40, 68). Several officers signed the notice, including Hoover (T p. 39), but Glapion did not sign the notice because he felt that he was already working in the program (T p. 39).

During that same time period after the Palardy Report issued Hoover asked the Chief if he (Hoover) could participate in the Crime Watch Program, and he (Hoover) volunteered to submit a report regarding that program (T pp. 97-98). Glapion testified that

Sgt. Duca told him that the Chief asked Hoover to submit a proposal, and that Hoover similarly told him that he (Hoover) had been asked to submit a proposal (T pp. 35-36). The Chief testified, however, that he did not ask Hoover to submit a proposal; rather, it was Hoover who asked him if a proposal could be submitted, and the Chief accepted it (T p. 98). I credit the Chief's testimony. Glapion's testimony on this issue is based entirely upon what Duca and Hoover allegedly told him. That testimony is hearsay and not reliable to prove the truth of the matter asserted. The Charging Party did not offer either Duca or Hoover to corroborate Glapion's testimony or to rebut Chief Simmons' direct denial.

10.	By September of 1985 the parties had reached agreement on most items in negotiations but eventually reached impasse regarding salary and longevity pay. The dispute proceeded to interest arbitration where the PBA eventually won, but the arbitrator's decision did not issue until after the middle of October 1985.

11.	The record shows that a State community affairs office often made brochures available to citizens explaining crime watch programs. At the end of September 1985 (Monday, September 30, 1985), the Chief asked Glapion to obtain 5000 brochures which the Mayor wanted to distribute during the upcoming political campaign (T pp. 40, 106, 122). That same day Glapion discovered that the State would not provide the brochures if they were used as a political message and he advised the Chief of the problem (T pp. 41-42). The

Chief telephoned the Mayor who indicated that to eliminate any political problem both political parties would distribute the brochures. Thus, the Chief, apparently on September 30, 1985, told Glapion to pick up the brochures (T p. 42). Glapion was only able to obtain 500 brochures, however, and gave those brochures to the Chief presumably on September 30 and told him that they could make copies (T p. 43). The Chief again spoke to the Mayor and asked if he wanted copies of the brochures. The Chief got back to Glapion, that same day, and told him to obtain a price quote to copy the brochures (T p. 45). Glapion reported back to the Chief that day that it would cost $250 to copy the number of brochures that were needed, and the Chief told him he (Chief) had to obtain permission from the Mayor to make the copies (T pp. 45-46, 73).

On Tuesday, October 1, 1985, the Mayor gave the Chief the approval to spend the money on the brochures and told the Chief he wanted the brochures by Friday, October 4, in time to pass them out to the public on October 5 and October 6, 1985 (T pp. 106-107, 155-156, 162, 176).3/ That same day (but certainly no later than Thursday, October 3, 1985) the Chief informed Glapion that the Mayor had authorized spending $250 to copy the brochures, and the Chief directed Glapion to obtain the brochures (T pp. 106-107, 139-140).

3/	Both Chief Simmons and Mayor Monroe testified that the Mayor gave the Chief his approval to spend the money for the brochures either on September 30 or October 1, 1985 (T pp. 106-107, 155-156, 176). Since the Chief testified that the approval came the next day (T pp. 132-133), I find that the approval came on Tuesday, October 1, 1985. The Charging Party did not offer any evidence to rebut that finding.

Glapion testified that the Chief never told him to get the brochures or that the Mayor had authorized the money (T pp. 74-75). The Chief testified, however, that he told Glapion by October 1 to get the brochures and that he had the Mayor's authorization (T pp. 106-107). He also testified that he told Glapion to get the brochures prior to Glapion's vacation day which was Friday, October 4, 1985 (T pp. 139-140). The record shows that Glapion was not working from October 4 through Monday, October 7, 1985. He was on vacation on October 4th, he was not scheduled to work on October 5 and 6, 1985, he called in sick on Monday, October 7, 1985, and he returned to work at midnight on October 8, 1985 (T pp. 46-47, 76). There was no evidence that Glapion was off duty or unavailable on Wednesday, October 2, or Thursday, October 3, 1985.

I credit the Chief's testimony that he told Glapion on October 1, 1985 (and certainly by October 3, 1985) to get the brochures. Glapion's testimony that the Chief did not tell him to get the brochures does not make sense. It does not fit into the pattern the Chief established and which Glapion admitted. Glapion testified that the Chief had to contact the Mayor on at least two occasions prior to obtaining the Mayor's authorization to spend the $250. The Chief, as Glapion testified, contacted the Mayor regarding the distribution of the brochures as a political item, and contacted him inquiring whether he wanted to have copies made. On both occasions the Chief promptly contacted Glapion with the results of his conversations with the Mayor. It makes no sense that the

Chief would deviate from that pattern of quickly contacting the Mayor and then promptly contacting Glapion particularly regarding the Mayor's final approval and the actual direction to Glapion to obtain the brochures. The Chief was under pressure to obtain the brochures by October 4. He certainly would have told Glapion to get the brochures prior to that date, most probably on October 1, the date the Mayor authorized the money for the brochures.

The Chief did not hear from Glapion on October 2 or 3, 1985; thus, on October 4, the day the Mayor originally wanted the brochures, the Chief told the Mayor that Glapion had not yet given him the brochures. The Mayor indicated that although he was disappointed at not receiving the brochures on October 4, it was not critical, but he definitely wanted them by Friday, October 11, 1985, so that they could be distributed the weekend of October 12 and 13, 1985 (T pp. 138, 162-163).4/ The Mayor then told the Chief that he (Mayor) would talk to him in the beginning of the following week (the week of Monday, October 7, 1985)(T p. 163).

4/	The Mayor testified that on October 4 the Chief had told him that he (Chief) had attempted to contact Glapion about the brochures but he did not speak to him (Glapion)(T p. 163). Although the Chief admitted that he did not contact Glapion from October 4 through October 7, 1985 (T p. 141), there was no showing that the Chief did not attempt to contact Glapion on October 2 and October 3, 1985. In fact, the Mayor testified that the Chief could have attempted to contact Glapion on October 3 (T p. 163). I find that there is no inconsistency or lack of credibility by either the Chief or the Mayor on this point.

On Monday, October 7, 1985, the Mayor did speak to the Chief who informed him (Mayor) that Glapion had not obtained copies of the brochure (T pp. 108, 157). The Mayor was upset that the brochures had not been obtained and he viewed Glapion's failure to obtain the brochures as a detriment to the program (T pp. 157, 159-160). The Mayor directed the Chief to get the brochures as quickly as possible (T p. 157) which prompted the Chief to suggest that Patrolman Hoover could obtain the brochures by Thursday, October 10, or Friday, October 11, 1985 (T pp. 157-158, 167-169). The Mayor then approved of Hoover's involvement in the program (T p. 168).

12.	In the late afternoon of October 7, 1985 the Chief orally instructed the evening shift sergeant to contact Glapion who was coming in for the midnight shift and advise him to see the Chief (T pp. 108, 110-111, 130). At 8:40 a.m. on Tuesday, October 8, 1985, Glapion telephoned the Chief, and the Chief advised him that Hoover was getting the brochures and taking his place in the program because Glapion had failed to obtain the brochures (T pp. 109, 172).

On October 9, 1985 the Chief sent a memorandum (Exhibit J-1) to Township Administrator Bittner advising him that Hoover had been assigned to head the Program. In J-1 Chief Simmons explained that he had been talking to the Mayor on October 7 and the Mayor agreed to have Hoover get the brochures since he (Chief) had not heard from Glapion between October 4 and October 7.

On October 10, 1985, the Chief signed a personnel order (Exhibit CP-5) assigning Hoover to crime prevention duties.

Glapion denied talking to the Chief about the program on October 8, 1985, and alleged that he did not talk to him until October 11, 1985 (T p. 77). However, I do not credit that testimony. Once again, it makes no sense that the Chief would get the Mayor's authorization on October 7 to ask Hoover to get the brochures, and tell Hoover on October 7, then issue J-1 and CP-5 on October 9 and 10, respectively, and not tell Glapion until Friday, October 11. It is far more likely that the Chief told Glapion on Tuesday, October 8. In fact, the Chief even remembered the specific time of the telephone call on October 8. Thus, I credit the Chief's testimony on that issue.

ANALYSIS

In order to establish a §5.4(a)(3) violation of the Act a charging party must make a prima facie showing sufficient to support an inference that protected activity was a "substantial" or a "motivating" factor in the employer's action. Bridgewater Twp. v. Bridgewater Public Works Ass'n, 95 N.J. 235 (1984). In order to make a prima facie showing a charging party must establish that an employee was engaged in protected activity, that the employer was aware of the protected activity, and that the employer was hostile toward the exercise of the protected activity. Bridgewater, supra, 95 N.J. at 246. If the charging party establishes a prima facie case the employer has the burden of establishing that it would have taken the same action - based upon legitimate business considerations - even absent the protected activity. 95 N.J. at 242.

The Charging Party clearly established that he was engaged in protected activity and that the Township was aware of such activity, but he failed to establish that the Township was hostile toward the exercise of that activity in removing him from the Crime Watch Program. The timing between the activity most relied upon by the Charging Party and the events in October 1985 was a significant factor. The Charging Party alleged that CP-3 and Bittner's "miffed" remark to him (Glapion) regarding the education grievance in December 1985, as well as Monroe's alleged "bug" remark to him after CP-1 and CP-2 were printed, demonstrated hostility. I do not agree. First, Bittner's "miffed" remark and CP-3 occurred in December 1984 almost a year before the October 1985 incident and was thus too far removed from the October events to have any significant impact on the Township's decision to remove Glapion from the Crime Watch Program. Second, CP-3 was intended to have a positive - not negative - effect on the parties' relationship, and I do not infer any hostility or animosity from that document. Third, Bittner was not involved in the decision to remove Glapion from the Crime Watch Program. Fourth, with regard to Monroe's alleged "bug" remark, I credit Monroe's testimony that he made no such remark. CP-1 and CP-2 standing alone do not demonstrate hostility by the Township. Although there is some evidence that at least one councilman did not want to hear the education grievance because of CP-1 and CP-2, the Council as a whole denied the grievance based on timeliness. I infer no hostility toward Glapion from that denial, and find that it

was well before the October events. If the Township wanted to remove Glapion from the program because of his remarks in CP-1 and CP-2, it is not reasonable to believe that it would have waited until October 1985.

The Charging Party also relied upon the Township's posting of a notice for a list of names of those employees interested in Crime Watch, and upon the fact that both the education grievance and the contract negotiations proceeded to arbitration in the Fall, to prove hostility toward Glapion. Those facts, however, carry little weight. The notice was posted in the Spring or early Summer of 1985 as a result of the recommendation in the Palardy Report. Glapion was free to sign that notice but chose not to. There was no showing, in any event, that the notice was posted because of Glapion's union activity, or that the list generated by the notice, or Glapion's absence from the list, had any connection to or impact on the Township's decision to remove Glapion from Crime Watch.

Similarly, both the grievance arbitration and the interest arbitration decisions were issued subsequent to October 7, 1985, the day the Chief decided to remove Glapion from Crime Watch. The mere fact that those matters proceeded to arbitration does not prove that the Township wanted to take some action against Glapion. There was no showing of unusual animosity or hostility at the arbitration proceedings, and given that arbitration is a commonly accepted event in a labor-management relationship, I cannot draw an inference here that the Township was hostile toward Glapion because those matters proceeded to arbitration.

Finally, even if a prima facie case had been established, the facts of the October events show that the Township had a legitimate basis to remove Glapion from the Crime Watch Program. Having found that the Chief told Glapion prior to October 4 to obtain the additional brochures, and that Glapion failed to do so, I find that the Chief properly acted within his discretion when he replaced Glapion. Despite any animosity that may have existed between the Mayor and Glapion, and Bittner and Glapion, neither the Mayor nor Bittner suggested that Glapion be removed from Crime Watch. Bittner was not even involved in the October events. It was the Chief who decided to remove Glapion in favor of Hoover who also had crime watch experience. The Chief was under pressure by the Mayor to deliver the additional brochures by a certain time, and after waiting several days for Glapion to deliver them, the Chief had to take some action to obtain the brochures, and Hoover was available to perform the task. Although Glapion may have had a legitimate basis for his absence from October 4-7, and may have intended to obtain the brochures after his return, the time did not comply with the Chief's needs, and thus the Chief acted reasonably in asking Hoover to complete the task of obtaining the brochures. Having been aware of Hoover's ability to perform Crime Watch responsibilities, and having already entrusted Hoover with the responsibility to obtain the brochures, it was only reasonable that the Chief would then replace Glapion with Hoover as head of Crime Watch.

In sum, the Charging Party did not establish that Glapion was removed from the Crime Watch Program because of the exercise of his protected activity.

Accordingly, based upon the above findings and analysis I make the following:

RECOMMENDATION

The Commission should ORDER that the Complaint be dismissed.

Arnold H. Zudick

Hearing Examiner

Dated: October 30, 1986

Trenton, New Jersey