H.E. NO. 79-1 1.
H.E. NO. 79-1
STATE OF NEW JERSEY
BEFORE A HEARING EXAMINER OF THE
PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the Matter of
NORTH BRUNSWICK TOWNSHIP BOARD
OF EDUCATION,1/
Respondent,
-and- Docket No. CO-78-110-52
NORTH BRUNSWICK EDUCATIONAL SECRETARIES
ASSOCIATION,
Charging Party.
Appearances:
For the North Brunswick Township Board of Education,
Borrus, Goldin and Foley Esqs.
(Anthony B. Vignuolo, Esq.)
For the North Brunswick Educational Secretaries Association, Mandel, Wysoker, Sherman, Glassner and Weingartner, Esqs.
(Stephen E. Klausner, Esq.)
HEARING EXAMINER = S RECOMMENDED
REPORT AND DECISION
An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the A Commission @ ) on November 22, 1977 by the North Brunswick Educational Secretaries Association (hereinafter the A Association @ ) alleging that the North Brunswick Board of Education (hereinafter the A Respondent @ or the A Board @ ) has engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, as amended, N.J.S.A. 34:13A-1 et seq (hereinafter the A Act @ ), in that the Board unilaterally changed the shift hours of one Carol Johnson on or about October 3, 1977 without collective negotiations with the Association, which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1), (3) and (5).2/ Under date of December 12, 1977 the charge of unfair practices was amended to allege, additionally, that after the filing of a grievance by the said Carol Johnson on October 11, 1977, and the filing of the aforesaid unfair practice charge on November 22, 1977, the Board, in retaliation, first suspended and then discharged 3/ the said Carol Johnson, both of which actions are alleged to be violations of N.J.S.A. 34:13A-5.4(a)(1) and (3). 4/
It appearing that the allegations of the Unfair Practice Charge, as amended, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on January 23, 1978. Pursuant to the Complaint and Notice of Hearing, hearings were held on February 27 and February 28, 1978 in Trenton, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. A post-hearing brief was filed by the Association under date of April 11, 1978 and by the Respondent under date of April 14, 1978.
An Unfair Practice Charge, as amended, having been filed with the Commission, a question concerning alleged violations of the Act, as amended, exists and, after hearing, and after consideration of the briefs filed by the parties, the matter is appropriately before the Commission by its designated Hearing Examiner for determination.
Upon the entire record, the Hearing Examiner makes the following:
FINDINGS OF FACT
1. The North Brunswick Township Board of Education is a public employer within the meaning of the Act, as amended, and is subject to its provisions.
2. The North Brunswick Educational Secretaries Association is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.
3. The parties are governed by a collective negotiations agreement, effective during the term July 1, 1977 through June 30, 1979, pursuant to which the Association is recognized as the majority representative for Secretaries, Clerks, Attendance Officer, Head Bookkeeper, Computer Operation/Keypunch, Keypunch Operator and Transportation Coordinator (J-1, Article I).
4. Carol Johnson was hired as a Keypunch Operator on January 16, 1976 and was covered by the aforesaid collective negotiations agreement at all times material hereto.
5. At the time of her hire Ms. Johnson was assigned to work from 8:30 a.m. to 4:30 p.m. with lunch from 12:00 noon to 1:00 p.m. These hours of work remained unchanged until October 3, 1977. 5/
6. Ms. Johnson was favorably evaluated on May 4, 1976 (CP- 1); she was not evaluated again during the term of her employment. There was no contractual impediment to a second evaluation (J-1, Article IV). The Board = s Secretary and Assistant Superintendent for Business, Robert W. Blessing, recommended in June 1977 6/ that Ms. Johnson = s contract of employment be renewed for one year.
7. With the prior approval of Mr. Blessing, Joseph Emanski, the Data Processing Manager and Ms. Johnson = s immediate supervisor, informed Ms. Johnson on September 21 that, due to the keypunching needs of the Department, it was necessary to change her shift hours. Her work day of seven hours was to remain unchanged and Mr. Emanski offered Ms. Johnson flexibility in
the starting and ending of the work day, suggesting that she could start as early as 10:00 a.m. and end as late as 11:00 p.m. Ms. Johnson stated that it would be inconvenient but that she wanted a few days to think about it, to which Mr. Emanski agreed.
8. When Mr. Emanski had not heard from Ms. Johnson regarding her suggestions as to shift hours by September 28, he issued a memo on that date advising Ms. Johnson that effective October 3 her new hours would be 11:00 a.m. to 7:00 p.m. with a lunch hour from 1:15 p.m. to 2:15 p.m. (R-8).
9. As a result of protests by Ms. Johnson that she would be the only woman working those hours and that she would be alone at night and not sate, a meeting was convened on September 29, with Ms. Johnson, Mr. Emanski and Mr. Blessing in attendance. Ms. Johnson continued to express her dissatisfaction with the proposed change in hours among other things threatened to sue Mr. Blessing, to which he responded that the contract provided a grievance procedure. Ms. Johnson = s suggestion to hire a part- time employee to work until 7:00 p.m. was rejected by Mr. Blessing. Mr. Blessing advised Ms. Johnson that there would be a custodian on the premises during the proposed new shift hours. The result of the meeting was that Mr. Emanski = s decision to change Ms. Johnson = s hours remained unchanged.
10. At the request of Mr. Blessing, Mr. Emanski on September 30 wrote a memo to Ms. Johnson, in which he recapitulated the events since September 21 (R-1). Ms. Johnson commenced working the new shift hours on October 3 and continued to do so until her termination.
11. It is undisputed that no one on behalf of the Respondent Board asked the Association to negotiate the proposed change in hours of Ms. Johnson prior to October 3, it being the positions of the Board, as testified to by Mr. Blessing, that the matter of hours of work was an administrative prerogative and that the setting of hours is up to the immediate supervisor (1TR. 118, 2Tr. 16-19). There is no Board policy on the changing of hours or on supervisors setting the hours for their employees (2Tr. 16, 38).
12. The collective negotiations agreement has no specific provision with respect to hours of work except the provisions on summer hours for 12 month clerical employees. 7/ A past President of the Association, June Ewald, testified that there was no need to have a specific provision on hours in the agreement since A school hours @ determined the hours of work. She also testified that no one in the collective negotiations unit is scheduled to work after 5:00 p.m.
13. Further, the collective negotiations agreement does not contain a management rights or prerogative clause, but does contain in Article VII, Section B a A zipper @ clause, which provides as follows:
A This Agreement represents and incorporates the complete and final settlement by the parties of all issues which were the subject of negotiations. During the term of the Agreement, neither party will be required to negotiate with respect to any such matter, whether or not covered by this Agreement, and whether or not within the knowledge or contemplation of either or both of the parties at the time they negotiated or signed the Agreement. @ (J-1)
14. Although Mr. Blessing and Mr. Emanski testified with respect to some dissatisfaction with Ms. Johnson = s work performance and attitude toward her job prior to September 1977, it is undisputed that there was no written documentation of any such dissatisfaction communicated to Ms. Johnson prior to the written memoranda which will be referred to hereinafter (2Tr. 36, 37). 8/
15. With the assistance of Wayne Dibofsky, the President of the North Brunswick Education Association and a staff consultant of the New Jersey Education Association, Ms. Johnson prepared and filed a grievance with respect to her change in hours on October 11 (CP-4). 9/
16. The said grievance alleged a violation of Article I, A Recognition, @ Sections A and B, and of Article III, A Grievance Procedure, @ Section A-1, the latter being the definition of A grievance. @ The statement of the grievance contained reference to changes in A terms and conditions @ of employment with regard to the new hours of Ms. Johnson. The grievance was denied at the first two steps by Mr. Emanski and Mr. Blessing on October 11 and October 17, respectively, 10/ and by the Board on November 9 (R-7).
17. Ms. Johnson testified on direct examination that the number of memos that she received was about the same before and after the filing of the grievance on October 11 (1TR. 54). Her testimony is substantially bourne out by the written memos introduced in evidence. Thus, see CP-3 (9/30); R-1(9/30); R- 10(10/3); R-11 (10/3); R-12 (10/11); R-13 (10/13 and 10/17) R-14 (11/1); R15 (11/2); R-16 (11/7) and R-17 (11/18). Mr. Emanski testified that Ms. Johnson never responded to any of the memos directed to her although she was informed that she had the right to do so (2Tr. 171,172). The aforesaid written memos all pertained to Ms. Johnson = s work, work habits, and attitude toward her job. 11/
18. Without rebuttal or contradiction by Ms. Johnson, Mr. Emanski credibly testified that, after the change in hours on October 3, the work of Ms. Johnson A visibly declined @ , and he stated further that A she resisted this change @ (2Tr. 106; see also, R-1).12/
19. Based upon the memos from Mr. Emanski to Ms. Johnson, supra , and Mr. Emanski= s ultimate recommendation to Mr. Blessing, Mr. Blessing recommended to the Board that Ms. Johnson be terminated (2TR. 22, 23). The Board acted on Mr. Blessing = s recommendation and terminated Ms. Johnson on November 22 (2Tr. 23). The action of the Board was communicated to Ms. Johnson by letter dated November 23 (C-1, Exhibit A C @ ).
20. The Board was not served with the initial Unfair Practice Charge until November 23 (2Tr. 23, 24).
21. Ms. Johnson was not terminated in retaliation for having filed a charge of unfair practices with the Commission on November 22, one day prior to service upon the Board.
22. Counsel for the Association, at the commencement of the hearing, made an oral motion for summary judgment, based upon paragraphs 3 and 5 of its answer to the original charge. A ruling was reserved pending disposition of the entire case. (1Tr. 14-17: C-1, C-2). 13/
23. Counsel for the Respondent Board, at the conclusion of the Association = s case, moved orally to dismiss portions of the amended charge of unfair practices, filed December 12, noting that this A count @ dealt basically with retaliatory termination. Specific reference was made by counsel to the allegations in the amended charge that Ms. Johnson was terminated in retaliation for her filing the original unfair practice charge on November 22 and, also, in retaliation for filing the grievance on October 11. A ruling on this partial motion to dismiss was likewise reserved. (1Tr. 144-151, 156, 157; C-1). 14/
THE ISSUES
1. Did the Respondent Board violate the Act when it unilaterally and without negotiations with the Association changed the shift hours of Carol Johnson?
2. Did the Respondent Board violate the Act when it first suspended and then terminated Carol Johnson?
DISCUSSION AND ANALYSIS
The Respondent Violated the Act When
It Unilaterally and Without Negotiations
With the Association Changed The Shift
Hours of Carol Johnson
1. The Positions of the Parties
The Association cites three cases, originating with the Commission, in support of its position that the Respondent violated the Act when it changed the shift hours of Ms. Johnson without prior negotiations with the Association. 15/ The Association also contends that A past practices @ governs the disposition of the instant case since the hours of Ms. Johnson remained unchanged from the date of her employment until October 3, citing New Brunswick Board of Education, P.E.R.c. No. 78-47, 4 NJPER 84 (1978) and the decisions of several arbitrators on past practice. Finally, the Association meets an anticipated contention that the A zipper @ clause in the collective negotiations agreement might constitute a waiver by citing several decisions of the National Labor Relations Board and the courts, which hold that evidence of a waiver statutory rights must be clear, convincing, unmistakable and unequivocal. 16/
The Respondent, in urging that there is no violation of the Act, first contends that the Association erred in filing a charge with the Commission rather than filing a legal action in the courts seeking a judicial determination as to whether or not the Board had violated the provision of Section 5.3 of the Act, which states that: A Proposed new rules or modification of existing rules governing working conditions shall be negotiated with the majority representative before they are established. @ The Board then cites two decisions where it contends such a procedure was followed and, must necessarily be followed here. 17/ Finally, the Respondent, citing the A zipper @ clause in the collective negotiations agreement, and C & C Plywood Corp ., supra , contends that the Association has waived any duty on the part of the Respondent to negotiate a change in the hours of employment of Ms. Johnson. 18/
2. The Association= s Position is Sustained
The Hearing Examiner finds and concludes that the three decisions cited by the Association, namely, Galloway, Willingboro and Hillside, supra , sustain the allegations in the original charge that the Respondent Board violated Subsections (a)(1) 19/ and (5) of the Act when it unilaterally and without negotiations with the Association changed the shift hours of Ms. Johnson on October 3. 20/ Consideration will, however, be given in due course to the full position of the parties as above set forth.
Considering first the Galloway case, supra , the Appellate Division affirmed the Commission = s finding that the employer there committed an unfair practice when it unilaterally and without negotiations altered the working hours of six secretaries. The working day of four secretaries was reduced from seven to four hours, the hours of another secretary were changed from 7:15 a.m. to 2:45 p.m. instead of from 7:45 a.m to 3:15 p.m., and, finally, another secretary = s work day was shifted by five minutes. Although Galloway involved changes made during the course of negotiations for an agreement, and not during the term of an already negotiated agreement, such as in the instant case, the language of the Appellate Division is pertinent hereto. The Court said, in pertinent part:
A ...appellant (employer) is confronted by settled federal law that a unilateral change by an employer in the terms and conditions of employment during collective bargaining constitutes an unfair labor practice. (citing cases)...
A Unquestionable, the alteration of two secretaries = working hours and the reduction of four other secretaries = total working day effected changes in the terms and conditions of their employment...We affirm the determination that both the announcement at the time made and the implementation of the changes had a chilling affect on the right of collective negotiations and amounted to a refusal to negotiate in good faith. @ (149 N.J. Super at 350, 351)
The Commission in Willingboro , supra , a case involving negotiations for a successor agreement, was confronted with the unilateral action of the employer in reducing the duty-free lunch period of teachers from 50 minutes to 35 minutes, with a corresponding reduction in the length of the teachers = work day, i.e., a reallocation of the hours of work. Thus, each teacher was in school no longer after the change than before the change. This is precisely the situation of Ms. Johnson in the instant case in that she continued to work seven hours before and after the change on October 3. The Commission, citing the Appellate Division decision in Galloway, surpa, said: A ...Therefore, the Commission concludes that, even assuming arguendo that the Board= s actions are viewed as simply reallocating duty free time, these actions unilaterally undertaken, were violative of the Act. @ (3 NJPER at 372). Thus, violations of Subsections (a)91) and (5) of the Act, as alleged, were sustained.
In Hillside, supra , a scope of negotiations proceeding, the length of the work day for four guidance counselors was extended on a rotating basis with compensatory time off the same work day. Thus, the total number of hours remained unchanged. The Commission concluded that an alteration in the hours of employment is a change in terms and conditions of employment and is, therefore, mandatorily negotiable, citing Englewood Board of Education v. Englewood Education Association , 64 N.J. 1 (1973). (See 1 NJPER at 57).
Turning now to the A past practice @ contentions of the parties, the Hearing Examiner is not persuaded that the Commission = s holding on past practice in New Brunswick Board of Education, supra , should be applied in the instant case. First, in New Brunswick there were a number of employees and classification involved, unlike the instant case where there is only one employees involved. Secondly, in New Brunswick the practice of an 11 month work year had been in existence A ... for a significant number of years, 18 in one case... @ , unlike the instant case where Ms. Johnson had only worked the same hours for a period from January 16, 1976 to October 3, 1977. The Hearing Examiner is inclined to conclude, therefor, that past practice in the instant situation is de minimis at best.
Further, and specifically with respect to the Respondent = s past practice contention regarding supervisors regulating the hours of their employees, there was a failure to prove any such practice by a preponderance of the evidence. Even assuming such proof arguendo , the Hearing examiner would not have been inclined to predicate a binding past practice finding upon an alleged prerogative of management.
The next matter for consideration is the respective contentions of the parties with respect to the A zipper @ clause in the collective negotiations agreement, quoted in Finding of Fact No. 13, supra . Taking into consideration the testimony of past Association President June Ewald (1Tr. 121-125), and the arguments and authorities contained in the Association = s Brief at pp. 12-15 therein, the Hearing Examiner finds and concludes that the Association did not waive its right to negotiate on the matter of hours change of Ms. Johnson merely by agreeing to include the A zipper @ clause in its collective negotiations agreement. It is noted that, other than pointing to the quoted language in the A zipper @ clause, Respondent has failed to adduce evidence of waiver of a statutory right within the meaning of the test established by the NLRB, namely, that the evidence of waiver must be A clear and unmistakable. @ 21/
Finally, the Hearing Examiner considers the contention of the Respondent that the Association should properly first seek a judicial determination of its rights under Section 5.3 of the Act A (b)efore the Commission can consider whether the Board committed an unfair labor practice by refusing to negotiate... @ 22/ The two cases cited by the Respondent23/ plainly do not support its argument that the Association must go to court for a determination on negotiability before the Commission can adjudicate an unfair practice.
In the Passaic County case, supra , the negotiating representative of the County probation officers instituted an action in the Chancery Division to enjoin the enforcement of a change in office hours by an administrative directive. The bargaining agreement contained no reference to hours of employment. It should be noted that the facts in that case arose at the time that Chapter 303 of the Act was in effect although it was heard after Chapter 123 became effective. Neither party urges the applicability of Chapter 123. The Court held that the change in hours was a reasonable exercise of the administrative and supervisory authority of the County judges, and was fully consistent with the agreement between the parties. The Court did not state that the change in hours was a modification of an existing A work rule @ in contravention of Section 5.3 of Chapter 303 of the Act. Plainly, the Passaic County case has no applicability to the instant case where the Commission is vested under Section 5.4(c) with exclusive power to prevent and remedy unfair practices.
The Hudson County case, supra, involved the reversal of a Civil Service Commission decision, decided in 1974 when Chapter 303 was likewise in effect. The only pertinent reference to the Act appears at 130 N.J. Super , p. 45, where note is made of the impasse procedures of the Commission. This case likewise has no relevance to the disposition of the instant case.
Having considered all of the arguments and contentions of the parties the Hearing Examiner reiterates his finding and conclusions that the Respondent violated Subsection (a)(1) and (5) of the Act when it unilaterally, without negotiations with the Association, changed the shift hours of Carol Johnson on October 3, 1977.
The Respondent Did Not Violate
The Act When It First Suspended
and Then Terminated Carol Johnson
The positions of the parties will not here be set forth since the contentions and arguments made in the respective Briefs are factual only, with references to the transcript, and do not contain any legal arguments or citations.
The gravamen of the Association = s amended charge of unfair practices, filed December 12, is that the Respondent retaliated against Ms. Johnson for protesting her change in shift hours, beginning September 30, and continuing with the filing of the grievance on October 11, the suspension of November 9-11, and finally, the termination, allegedly following the filing of the original unfair practice charge on November 22. 24/ Based on the entire record in this case, the Hearing examiner finds and concludes that Ms. Johnson was not suspended and terminated in retaliation or reprisal for the exercise by her of any rights protected by Subsection (a)(1) of the Act.
It will be recalled that the amended charge of unfair practices alleges a violation of Subsections (a)(1) and (3). The Commission in Haddonfield Borough Board of Education, P.E.R.C. No. 77-31, 3 NJPER 71 (1977) adopted the following standard in cases alleging a violation of Subsection (a)(3) of the Act:
A ...A violation of N.J.S.A . 34:13A-5.4(a)(3) should be found if it is determined that a public employer = s discriminatory acts were motivated in whole or in part by a desire to encourage or discourage an employee in the exercise of rights guaranteed by the Act or had the effect of so encouraging or discouraging employees in the exercise of those rights.
A Application of this two-fold standard will normally involve a preliminary showing by the Charging party of two essential elements. There must be proof that the employee was exercising the rights guaranteed to him by the Act, or that the employer believed said employee was exercising such rights, and proof that the public employer had knowledge, either actual or implied, of such activity.
A ...Discriminatory acts by employers, even if only partly motivated by an employee = s union activities, or acts that would discourage exercise of such rights, and would clearly tend to frustrate the express intent of the Act.
A Furthermore, the two-fold test upholds the employer = s legitimate prerogative to discharge, suspend or refuse to promote employees for reasons unrelated to union activities. The employer may take such action for any cause or no cause at all as long as it is not retaliatory. It is the Charging Party that must prove its case by the preponderance of the evidence (citing N.J.A.C. 19:14-6.8). @ (Emphasis supplied in part) ( 3 NJPER at 72).
See also, City of Hackensack, P.E.R.C. No. 77-49, 3 NJPER 143 (1977), appeal pending, App. Div., Docket No. A-2546-76.
In Haddonfield, supra , the Commission agreed with the Hearing Examiner in that case that the Charging party had failed to meet its burden of proof by a preponderance of the evidence. So, too, has the Hearing Examiner concluded in the instant case.
If the record in this case had supported a finding that Ms. Johnson was retaliated against by the Respondent, first by suspension and then by termination, the Hearing Examiner would have had no hesitation in concluding that she, was discriminated against on account of the exercise by her of a right protected by Subsection (a)(1) of the Act, namely, the filing of a grievance. 25/
The Problem is that the proofs adduced by the Association failed to demonstrate to the Hearing Examiner that Ms. Johnson was suspended and terminated because she filed a grievance on October 11. Ms. Johnson acknowledged that the number of written memos received by her before and after the filing of the grievance was about the same, and this testimony was substantially borne out by the written memos introduced in evidence (Finding of Fact No. 17).
Further, there was nothing in the way in which the Respondent responded to the grievance of Ms. Johnson, which indicated there was anything for which the Respondent could be criticized. Ms. Johnson had alleged violations of two articles of the collective negotiations agreement, Recognition and the Grievance procedure, which were promptly and properly denied by her immediate supervisor, Mr. Emanski, on October 11, by Mr. Blessing on October 17 and, ultimately, by the Board on November 9 (Finding of Fact No. 16). It is the opinion of the Hearing Examiner that no sustainable grievance could be predicated on the Recognition and Grievance Procedure articles under the circumstances of the proposed change in hours for Ms. Johnson effective October 3.
The Hearing Examiner, in the light of the testimonial and documentary evidence, is persuaded that Ms. Johnson was suspended and terminated for objective reasons, unrelated to the exercise by her of any protected activity under the Act.
There has been no showing by the Association of any independent anti-union animus toward Ms. Johnson by the Respondent. As noted previously, the only possible protected activity in which she could have been found to have been engaged was the filing of the grievance on October 11.
The Hearing Examiner has discounted any alleged dissatisfaction with Ms. Johnson by Mr. Emanski and Mr. Blessing prior to the issuance of the written memoranda, the first of which were issued on September 30 (CP-3 and R-1). (Finding of Fact No. 14, and footnote 12, supra ). The written memoranda issued by the Respondent to Ms. Johnson dealt with her work, work habits and attitude toward her job (Finding of Fact No. 17).
On November 7, Mr. Blessing informed Ms. Johnson of her three-day suspension; the memo stated explicitly that unless her work habits improved upon the conclusion of the suspension, Mr. Blessing would recommend to the Board that she be given a 30-day notice of termination (R-16). No grievance was filed by Ms. Johnson with respect to the three-day suspension, which she had every right to do under the agreement. She had already filed a grievance on October 11, with the assistance of Mr. Dibofsky, and could have done so on, or shortly after, the issuance of the memo of November 7. The suspension thus stands uncontroverted.
The Hearing Examiner has credited the testimony of Mr. Emanski that the work of Ms. Johnson A visibly declined @ after the change in hours of October 3 and, further, that Mr. Johnson A resisted this change @ (Finding of Fact No. 18). Her resistence of the proposed hours changed was indicated as early as the September 29 meeting between Mr. Blessing, Mr. Emanski and Ms. Johnson stated that she was A just not going to work those hours @ (see R-1,p.2).26/
Thus, the Hearing Examiner is compelled to find and conclude that Ms. Johnson was suspended and terminated for reasons which were in no way or manner connected with the exercise by her of any rights protected by the Act, i.e., Ms. Johnson was suspended and terminated because of Respondent = s independent dissatisfaction with her work attitude and performance. 27/
* * * * *
Upon the foregoing, and upon the entire record in this case, the Hearing Examiner makes the following:
CONCLUSION OF LAW
1. The Respondent violated Subsection (a)(1) and (5) of the Act when it unilaterally and without negotiations with the Association changed the shift hours of Carol Johnson effective October 3, 1977.
2. The Respondent did not violate Subsection (a)(2) of the Act when it unilaterally and without negotiations with the Association changed the shift hours of Carol Johnson effective October 3, 1977.
3. The Respondent did not violate Subsection (a)(3) of the Act when it suspended and then terminated Carol Johnson.
The Hearing Examiner recommends that the Commission ORDER:
A. That the Respondent cease and desist from:
1. Interfering with, restraining or coercing its employees in the exercise of the rights guaranteed to them by the Act by refusing to negotiate with the Association in good faith with respect to changes in shift hours of employees.
2. Refusing to negotiate in good faith with the Association concerning terms and conditions of employment, including unilateral implementation of changes in shift hours of employees in the negotiations unit represented by the Association.
B. That the Respondent take the following affirmative action:
1. Upon demand, negotiate in good faith with the Association with respect to the terms and conditions of employment, including changes in shift hours of employees in the negotiations unit represented by the Association.
2. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix A A @ . Copies of such notice, on forms to be provided by the Commission, shall be posted by the Respondent immediately upon receipt thereof, after being signed by the Respondent = s representative, and shall be maintained by it for a period of at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the respondent to insure that such notices are not altered, defaced or covered by other material.
3. Notify the Director of Unfair Practices within twenty (2) days of receipt what steps the Respondent has taken to comply herewith. 28/
C. That the allegation of a violation of Subsection (a)(3) in the Complaint be dismissed in its entirety.
_______________________
Alan R. Howe
Hearing Examiner
Dated: July 6, 1978
Trenton, New Jersey
1/ As amended at the hearing.
2/ These subsections prohibit employers, their representatives or agents from: A (1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the 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. (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. @
3/ The suspension was for three days without pay, November 9- 11, 1977. This discharge was by Board action on November 22, 1977, which with 30 days required notice was effective as of December 23, 1977 (C-1 and Exhibit A C @ thereto).
4/ The Association did not allege that the discharge was a violation of N.J.S.A . 34:13A-5.4(a)(4), which prohibits employers, their representatives or agents from: A 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. @ Even if alleged, based upon Findings of Fact Nos. 20 and 21, infra , there was no violation of subsection (a)(4) of the Act.
5/ Article VI, Section F of the collective negotiations agreement provides that: A All 12 month clerical employees to work 6 hours per day during the months of July and August. @ Although the record is silent, presumably Ms. Johnson worked only until 3:30 p.m. during July and August of 1976 and 1977.
6/ All dates hereinafter are 1977 unless otherwise indicated.
7/ Article VI, Section F of J-1, quoted in footnote 5, supra.
8/ Note is taken of R-5, dated April 18, which is a memo from Mr. Emanski to Mr. Blessing and which was not communicated to Ms. Johnson. This was the only documentation to which Mr. Blessing could refer prior to September 1977.
9/ Article III of the collective negotiations agreement in Section A specifically covers Ms. Johnson as having standing to grieve individually. A A grievance @ is there defined as a complaint in writing by a member of the staff @ ...that there has been as to him a violation, misinterpretation, or inequitable application of any of the provisions of this agreement... @ (J-1).
10/ See CP-4.
11/ Especial note is taken of R-16, the memo dated November 7 from Mr. Blessing to Ms. Johnson, informing her of her three-day suspension. It contained a warning that unless her work habits improved upon the conclusion of the disciplinary action, Mr. Blessing would recommend to the Board that she be given a 30-day notice of termination. No evidence was introduced that Ms. Johnson filed a grievance with respect to this disciplinary action.
12 / It is noted that Mr. Emanski acknowledged on cross- examination that, as of the September 29 meeting with Mr. Blessing and Ms. Johnson, the keypunching of Ms. Johnson was acceptable (2Tr. 172).
13 / Based upon a fair reading of the paragraphs referred to by counsel for the Association in the original charge and answer, the motion for summary judgment is denied as the requisite admissions are plainly missing. However, as will be apparent hereinafter, the Hearing Examiner finds a violation of subsections (a) (1) and (5) of the Act (see Discussion and Analysis, infra, pp. 8-11).
14/ The motion to dismiss so much of the amended charge of unfair practices as alleges retaliation in termination of Ms. Johnson for filing the unfair practice charge on November 22 and for filing the grievance on October 11 is granted. The foregoing findings of Fact, in the opinion of the Hearing Examiner, demonstrate that there was no element of retaliation in the termination of Ms. Johnson, particularly as to the filing of the original unfair practice charge, since the Board = s action of termination took place the day before it received the charge. For reasons more fully set forth hereinafter, the Hearing Examiner is likewise persuaded that Ms. Johnson was not terminated in retaliation for having filed a grievance on October 11 (see Discussion and Analysis, infra, pp. 11-14)
15/ Galloway Township Board of Education and Galloway Township Association of Educational Secretaries, P.E.R.C. No. 76-31, 2 NJPER 182 (1976), 149 N.J. Super 346 (App. Div. 1977), cert. granted, 75 N.J . 29 (1977), appeal pending; Board of Education of the Township of Willingboro, P.E.R.C. No. 78- 20, 3 NJPER 369 (1977), appeal dismissed by stipulation, App. Div. Docket No. A-1035-77 (1978); and Hillside Board of Education, P.E.R.C. No. 76-11, 1 NJPER 55 (1975).
16/ NLRB v. C & C Plywood Corp., 385 U.S. 421, 64 LRRM 2065 (1967), aff = g. C & C Plywood Corp ., 148 NLRB No. 46, 57 LRRM 1015 (1964); Proctor Mfg. Corp ., 131 NLRB No. 142, 48 LRRM 1222 (1961); and Press Co., Inc ., 121 NLRB No. 116, 42 LRRM 1493 (1958).
17/ Passaic County probation Officers Association v. Passaic County , 132 N.J. Super 247 (Chan. Div. 1975), modif. and aff = d., 73 N.J. 247 (1977); Prosecutor = s Detectives etc. Essex County v. Hudson County Board of Freeholders, 130 N.J. Super 30 (100. Div. 1974).
18/ Interestingly, the Respondent also cites New Brunswick Board of Education, supra , urging as a binding past practice on the parties the fact that the immediate supervisors of the employees such as Ms. Johnson have always fixed the employees = specific work hours.
19/ The Subsection (a)(1) violation is derivative, not independent. See G alloway Township Board of Education, P.E.R.C. No. 77-3, 2 NJPER 254, 255 (1976).
20/ There was no evidence adduced by the Association that the Respondent violated Subsection (a)(3) as originally alleged. Accordingly, the Hearing Examiner will recommend dismissal as to this Subsection.
21 / C & C Plywood Corp. and Proctor Mfg. Corp., supra , footnote 16.
22/ Respondent = s Brief, p.7.
23/ Footnote 17, supra.
24/ the Hearing examiner has previously found that the termination was not in retaliation for Ms. Johnson having filed a charge of unfair practices on November 22; Findings of Fact No. 21, supra.
25/ Cf. College of Medicine and [Denistry] Dentistry, P.E.R.C. No. 76-46, 2 NJPER 219 (1976). See, Michigan Employment Relations Commission v. Reeths-Puffer School District , 1 PBC para. 10,237 (Mich. Supr. Ct. 1974); Town of Halifax , Case No. MUP-2059, Mass LRC (1975).
26/ It is noted that Ms. Johnson was not called by the Association in rebuttal to the testimony of Mr. Blessing and Mr. Emanski, nor to rebut the substantive content of the written memoranda issued by Respondent to her beginning with R-1 and concluding with R-10 through R-17.
27 / See PLRB v. Lehigh County, Case No. C-4856-C, 5 PaPER 111 (1974).
28/ No affirmative order is recommended to restore the status quo with respect to shift hours since the only affected employee was Carol Johnson, as to whom the Respondent did not violate the Act when it suspended and terminated her.
***** End of HE 79-1 ***** |