H.E. NO. 80-12

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

CITY OF TRENTON,

Respondent,

-and-	Docket No. CO-79-127-81

P.B.A. LOCAL #11 AND RICHARD HOLDER,

Charging Party.

Appearances:

For the City of Trenton,

Katz, Bitterman & Dougherty, Esqs.

(Michael L. Bitterman, Esq.)

For the P.B.A. Local # 11 and Richard Holder,

Thomas P. Foy, Esq.

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

On November 21, 1978, Patrolmen's Benevolent Association Local # 11 (PBA) and Patrolman Richard Holder filed an Unfair Practice Charge with the Public Employment Relations Commission (Commission) alleging that the City of Trenton (City) violated §5.4(a)(1)1/ and (3) of the Public Employer-Employee Relations Act (Act) by transferring Patrolman Richard Holder from the K-9 Section because of his union activities. It appearing that the allegations if true may constitute an unfair practice, a Complaint and Notice of hearing was issued on April 19, 1979, and a hearing was conducted on August 13, 14 and 15, 1979. Both parties were given an opportunity to present evidence, to cross-
examine witnesses and to argue orally.2/ Transcripts were received in the Commission's offices on September 18, 1979.

Richard Holder has been a police officer for the City of Trenton for eight years and was a member of the K-9 patrol from 1974 to November 1978. A number of lieutenants who were his superiors testified at the hearing that he was a good officer, that he was energetic and well motivated. Furthermore, the former sergeant in charge of the K-9 section, Sgt. Albano, was complimentary of Holder and his abilities as a police officer. On March 17, 1978, Patrolman Albano was transferred to the detective squad and Eric Medina Fontaine assumed the role of K-9 training supervisor. Fontaine testified that he had a philosophic difference from Albano from the way the dogs in the K-9 squad should be trained. The dogs of the K-9 squad were involved in a number of incidents where individuals of the general public were bitten and otherwise attacked by some if the K-9 dogs. Fontaine attributed this to their training which made making the dogs vicious and extremely aggressive. Most of the men of the K-9 corps valued this aggressiveness - they felt this made for "good strike dogs," dogs that are quick to attack without the need for specific commands. Fontaine, on the other hand, felt that the most important attribute for the dogs was their obedience to the handler; the dogs must bite only on command unless the handler is being attacked.

Fontaine testified that he initially met resistence from the police officers in the K-9 corps with his methods and that Holder specifically displayed a type of passive resistence to Fontaine's methods. Holder would never disagree with anything Fontaine would say but would refuse to cooperate. On one occasion, when Fontaine was training a dog to search out a building, he asked Holder to hide in the building. When Fontaine and the dog entered the building Holder was not hiding but standing in the middle of the room. On another occasion Holder complained of being sick during the training session, but when Fontaine suggested that Holder seek out medical attention Holder responded that he was not that sick. Fontaine felt that in the period from March, when he first assumed his duties with the K-9 division, until November, when Holder was transferred, Holder never displayed what Fontaine considered the most important element in training a dog, enthusiasm. As Fontaine described it, a dog doesn't understand language, he only understands emotions which are transmitted by the handler to the dog. Accordingly, he felt that Holder was not doing the type of work that Fontaine felt was necessary to do a good job.

Holder and the PBA, on the other hand, take the position that Fontaine's reasons for the transfer were pretextual and the real reason for the discharge was Holder's PBA activity. Holder was recording secretary in the PBA local and shop steward for the K-9 section. It was only because Holder was an active shop steward and regularly filed grievances and lodged complaints that a conflict developed between Fontaine and Holder. Holder testified he repeatedly complained to Fontaine about a number of recurring problems.

At the hearing Capt. Richard Lucherini testified that he okayed the transfer of Holder solely on the basis of Sgt. Fontaine's recommendations; he had no direct chance to observe Holder or Holder's dog and his decision was based solely on Fontaine's recommendations. The testimony of the captain was credible. Accordingly, if Holder's transfer was motivated by anti-union animus, that animus must be attributable to Fontaine.

The first allegation made by the Charging Party in its complaint concerned a grievance filed concerning K-9 patrolmen's overtime.3/ The grievance was filed prior to the time that Fontaine assumed his duties in the K-9 patrol. Fontaine was not a party to the grievance. Therefore it is unlikely that this grievance played a part in Holder's transfer. As to the second allegation in the complaint that concerned changing scheduling hours, Fontaine testified that he had nothing to do with scheduling, that scheduling was the function of the shift lieutenant and the testimony of the PBA's witnesses confirmed Fontaine's testimony. The grievance filed was signed by Patrolman Auletta and Holder merely forwarded this grievance to Thomas Murphy, the president of the PBA. Murphy then took this grievance directly to the chief. Murphy regularly reminded the chief of this grievance and asked him to do something about it for a period of months. There was no testimony that Sgt. Fontaine had anything to do with this grievance either.

Fontaine admitted that he had received complaints from Holder as well as all the other men in the K-9 corps concerning scheduling of K-9 training, the issuance of K-9 checks and the issuance of dog food. 4/ He testified that Holder complained no more than any of the other men in the K-9 squad and moreover Patrolman Auletta (who filed the grievance concerning working schedules) complained far more than Holder ever did and Fontaine believed that it was Auletta who was the union representative of K-9 corps, not Holder.

Holder however maintained that Fontaine made statements alluding to the PBA, such as "the PBA should not act as an interference with the duties of the K-9 corps."

Holder submitted a grievance that Sgt. Fontaine was working out of job title and such a grievance might cause a certain amount of resentment. It is noted however that this was the only grievance in evidence actually filed by Holder.

This case comes down to a question of the credibility of Fontaine versus the credibility of Holder. Holder and the PBA must prove their case by the preponderance of the evidence. On balance I found both men to be reasonably credible. Although Fontaine denies specific recollection of a number of incidents, he didn't dispute that they actually occurred; rather, his position is that they were trivial in nature and were not memorable. Fontaine's credibility was called into serious question on one occasion: there were a series of four evaluations of performance that he had kept but never showed to Holder. All were absolutely identical in their ratings. One of those particular evaluation sheets was supposedly for the month of November and it came out during the testimony that Holder was transferred on November 7th and the evaluations required Fontaine to spend several days evaluating the performance of the dog and his handler. But there was only one day during the month of November up until the time of Holder's transfer when Fontaine and Holder's schedule coincided. In spite of the questions raised about the validity of the evaluations, the rest of the testimony concerning Fontaine and the handling of the dogs seemed reasonably responsive and credible. As stated above there were a number of incidents which bear out Fontaine's testimony as to the quality of the K-9 dogs. One incident involved Holder. Holder had been bitten by his dog and had a scar (although not a particularly obvious one) that stretched for several inches across his forehead and required a number of stitches to close. Holder testified that his dog was asleep in his living room. He went over and grabbed him by the neck to wake him up. The dog bit him coming out of its sleep. Holder maintained that any dog would bite under the circumstances. It strains credibility to believe that any dog is capable of inflicting such a severe wound on its master. As Fontaine testified, such an attack is much more likely to occur after a dog has been trained to overcome all its natural inhibitions against biting and bite spontaneously. Another example of the problems with the K-9 dogs as testified to by Fontaine was when a dog attacked a security investigator for ADT Services. After the dog attacked, its police handler could not get the dog to release its bite, an elemental part of training of attack dogs.

Fontaine's testimony concerning the underlying conflict between the two men was corroborated by independent evidence, but Holder's testimony was unsupported and concerned incidents of a relatively minor nature. Accordingly, the undersigned finds that Holder and the PBA failed to prove by a preponderance of the evidence that Holder's transfer was motivated, in part, for an unlawful purpose. Accordingly, it is hereby recommended that the Commission issue the following order.

Recommended Order

For the reasons set forth above it is recommended that the Complaint in this matter be dismissed in its entirety.

__________________________

Edmund G. Gerber

Hearing Examiner

DATED: Trenton, New Jersey

October 5, 1979