On June 13, 1988, Public Employees Supervisor Union affiliated with Local 723, International Brotherhood of Teamsters ("Local 723") filed an Unfair Practice Charge against the County.

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; 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; and (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."

The facts are largely undisputed. The contracts for both the CWA and Local 723 provide for leave for union business. The CWA contract provides:

It is undisputed that the presidents of CWA and Local 723 were routinely granted leave for union business to attend Board of Freeholder meetings. On April 29, 1988, an article appeared in the Star Ledger quoting Weiner, who accused Nicholas Amato, County Executive, and Freeholder Thomas Giblin of "reneging on their commitment to have an open dialogue with labor." Weiner was also

3/ Paragraph C in the CWA contract is not a separate paragraph in Local 723's contract, rather, it is the last sentence in what is paragraph B.

On May 9, 1988, Judyth L. Goldstein, Director of the Division of Welfare, sent Weiner a Memorandum which essentially repeats what Zalkind told Weiner on May 6, 1988. On May 11, 1988, Weiner received two memos; one was a copy of a handwritten memo from Catherine Addonizio, Field Office Manager, instructing Weiner's supervisors not to allow him to take either union leave time or personal time on Wednesdays (Freeholder meetings are on Wednesdays); the other memo, from Judyth L. Goldstein, denied Weiner's request for leave time to attend the May 11, 1988 Freeholder meeting. The memo states that: "since there is nothing on the Agenda that pertains to your Union Contract, your request to attend such meeting is hereby denied."

Irwin Perlis is President of Local 723 and an employee in the Supervisors Unit of the Essex County Welfare Division. Perlis was routinely granted leave time to attend Freeholder meetings. On May 6, 1988, Zalkind and Goldstein told Perlis that new criteria were being applied to determine whether employees could attend Board meetings. They stated that all requests to attend Board meetings

must be submitted to a field office manager, that requests would be held until the day before a Freeholder meeting and that the Freeholder's agenda would then be reviewed to determine if there were anything on the agenda that directly involved the Welfare Department. If the County determined there was nothing of interest to the Department, the request would be denied. On May 10, 1988, the Division Director overruled Perlis' previously approved request to attend the Freeholder meeting of May 11, 1988 and Goldstein told Perlis that if he requests to take a personal or vacation day on a Wednesday (the Board meeting day), such leave would have to be approved by her personally rather than the normal procedure of merely notifying an immediate supervisor.

On May 13, 1988, Perlis submitted a memo requesting a 1/2 day personal leave on May 18, 1988. The request was turned down by Perlis' supervisor who told him that the decision had to go to the Division Director for approval. Requests by Perlis for leave on any day but Wednesday would not be subject to approval by the Director.

The County argues that the clear contract language in both contracts grants the County discretion as to whether to grant leave time for union business. The contract language is discretionary. It states the Union "may be granted leave time." The County argues that it was merely exercising its inherent right to manage its operations in an orderly and efficient manner and moreover its actions were a contractual right.

While the contract language in question seems to limit the County's ability to deny union leave time, the language may be subject to differing interpretations and the County's action standing alone might not constitute a repudiation under State of New Jersey (Dept. of Human Services), P.E.R.C. No. 84-148, 10 NJPER 419 (& 15191 1984).

However, both unions argue that the County's actions were taken in retaliation for exercising protected rights and were it not for the article in the Star Ledger quoting David Weiner, the County would have never taken such action. The unions also argue that the harm here is irreparable. If the Freeholders take any action at a meeting where the union representatives are not present, the employees they represent would not have the benefit of union representation in attendance and once the opportunity for the unions to hear and comment on Freeholder action is gone, the unions could not be made whole again.

The standards that have been developed by the Commission for evaluating interim relief requests are similar to those applied by the Courts when addressing similar applications. The moving party must demonstrate that it has a substantial likelihood of success on the legal and factual allegations in a final Commission decision and that irreparable harm will occur if the requested relief is not granted. Further, in evaluating such requests for

relief, the relative hardship to the parties in granting or denying the relief must be considered. ^4/

The County's initial reaction in not allowing either Weiner or Perlis the use of personal leave time to attend Freeholder meetings is suspect. ^5/ The contract places no limitation on the use of such leave.^6/ The County wanted to keep these two union representatives out of the Freeholder meetings. This conduct evinces an intent to discourage the exercise of protected rights in violation of ' (a)(3). Moreover, the County cannot stand in the shoes of the unions and decide what issues are of importance to employees. Only the union's representatives can make this determination. Such action interferes with the exercise of protected rights in violation of ' (a)(1). Due to the nature of union representation at Freeholder meetings, I believe that the harm in denial of attendance is irreparable and in balancing the harms, the harms to the County in granting 1/2 day leave time to Perlis and

4/ Crowe v. DeGioia, 90 N.J. 126 (1982); Tp. of Stafford, P.E.R.C. No. 76-9, 1 NJPER 59 (1975); State of New Jersey (Stockton State College) , P.E.R.C. No. 76-6, 1 NJPER 41 (1975); Tp. of Little Egg Harbor , P.E.R.C. No. 94, 1 NJPER 36 (1975).

5/ There are conflicts in the submitted affidavits as to what Zalkind told Weiner. Those statements have not been considered in this determination.

6/ It is noted that on June 2, 1988, approximately two weeks after the incident which precipitated this charge, the County announced that it would not limit the use of personal leave by Perlis or Weiner. However, these actions do not change the nature of the County's original actions.

Accordingly, based upon the entire record before me, Essex County is hereby restrained from denying the approval of union leave time (which is otherwise properly applied for by Weiner or Perlis pursuant to the terms of the contracts) for attendance at Freeholder meetings. This is an interim order only and subject to a full plenary hearing.

Edmund G. Gerber
Commission Designee

DATED: June 23, 1988
Trenton, New Jersey