H.E. NO. 86-65 1.
H.E. NO. 86-65
STATE OF NEW JERSEY
BEFORE A HEARING EXAMINER OF THE
PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the Matter of
HUNTERDON COUNTY SHERIFF,
Respondent,
-and- Docket Nos. CI-86-23-116
& CO-86-177
GARY W. WARFORD & HUNTERDON
COUNTY SHERIFF OFFICERS ASSOCIATION,
FOP LODGE NO. 94,
Charging Party.
Appearances:
For the Respondent
Gaetano M. DeSapio, Esq.
For the Charging Party
Gary W. Warford, Pro Se
HEARING EXAMINER'S RECOMMENDED
REPORT AND DECISION
An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on November 8, 1985 by Gary W. Warford (hereinafter the "Charging Party" or "Warford") alleging that the Hunterdon County Sheriff (hereinafter the "Respondent" or the "Sheriff") has engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, as amended, N.J.S.A. 34:l3A-1 et seq . (hereinafter the "Act"), in that on May 30, 1985, Warford filed a grievance with the Sheriff, regarding reimbursement for vehicle
mileage under the collective negotiations agreement, which reimbursement arose because of Warford's having to attend the Middlesex County Police Academy on June 10, 1985; and on June 3, 1985, Warford received a memorandum from the Undersheriff, advising him that since his attendance at the Police Academy had been cancelled the grievance became moot; and on June 4, 1985, Warford met with the Sheriff, who stated that no one had filed a grievance against him and that he was taking Warford out of the Police Academy to harass him; and on October 17, 1985, Warford was suspended for two days for photocopying a memo and in connection therewith the Sheriff mentioned the May 30th grievance; and on October 21, 1985, Warford filed a grievance regarding the two-day suspension and the Sheriff's failure to permit Warford to review his personnel file; and on October 28, 1985 Warford was given access to his personnel file which contained therein two handwritten complaints which Warford had never seen previously; all of which is alleged to be in violation of N.J.S.A. 34:l3A-5.4(a)(1), (3) and (4) of the Act.1/
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 (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."
On December 11, 1985, Warford amended the initial Unfair Practice Charge 2/ to allege that on November 6, 1985, two sheriff's officers photocopied and posted memos and were not disciplined such as he was on October 17, 1985; that since the filing of his grievance in May 1985, Warford has been assigned to onerous duties in retaliation for the filing of the grievance and the initial Unfair Practice Charge; that the Sheriff placed in Warford's personnel file on and after August 16, 1985, statements from two co-employees, Wanda Young and Anna Mary Gordeuk, which Warford alleges are untrue; and that on October 22, 1985, one day after Warford filed his second grievance, Undersheriff Schumann attempted through several sheriff's officers to bring about another complaint against Warford; all of which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1), (3) and (4) of the Act, supra.
Finally, on January 14, 1986, Warford amended his prior Unfair Practice Charges, adding as a Charging Party the Hunterdon County Sheriff Officers Association, FOP Lodge No. 94 (hereinafter the "FOP") [Docket No. CO-86-177] to allege, inter alia , that between December 12, 1985 and January 6, 1986, he was harassed by the Sheriff, having been assigned to duty in the County parking lot from 8:00 a.m. to 4:00 p.m. in sub-freezing temperatures without proper clothing, contrary to the manner in which other sheriff's
2/ Both the initial Unfair Practice Charge and this amendment were filed under Docket No. 86-23-116.
officers were treated in that the latter were not required to work a full shift, some working only one hour per day; that on January 3, 1986, the Sheriff required Warford to produce a doctor's certificate for sickness of less than five days, which he alleges was contrary to the policy enforced by the Sheriff for other sheriff's officers; that in September 1985, the Sheriff received a letter of commendation regarding Warford, which was not made part of his personnel file because he had filed a grievance; and finally, Warford alleged a series of contract violations, arising from the collective negotiations agreement between the Sheriff and the FOP, which Warford abandoned prior to the hearing, based on the Hearing Examiner having explained to him the Commission's decision in Department of Human Services, P.E.R.C. No. 84-148, 10 NJPER 419 (& 15191 1984).
It appearing that the allegations of the Unfair Practice Charges, as amended, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on February 11, 1986. 3/ Pursuant to the Complaint and Notice of Hearing, hearings were held on March 31, April 2, April 7, April 21
3/ On January 28, 1986, Commission Designee, Arnold H. Zudick, granted Warford's application for interim relief and entered an order restraining the Sheriff from terminating Warford because of Warford's not having completed the police training course in accordance with the 18-month time constraints set forth in N.J.S.A . 52:17B-69, pending the final disposition of the instant Unfair Practice Charge, as amended, by the Commission (I.R. No. 86-14).
and May 14, 1986, in Trenton, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Both parties argued orally on May 14, 1986, and waived the filing of post-hearing briefs.
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 oral arguments of 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 Hunterdon County Sheriff is a public employer within the meaning of the Act, as amended, and is subject to its provisions.
2. Gary W. Warford is a public employee within the meaning of the Act, as amended, and is subject to its provisions.
3. The Hunterdon County Sheriff Officers Association, FOP Lodge No. 94 is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions. 4/
4/ This finding is made notwithstanding that there was no litigation involving the FOP as a party. However, it is found that Warford has been the President of the FOP since mid-December 1985.
4. Warford was hired as a sheriff's officer on February 4, 1985 and based on his prior experience 5/ the Sheriff, Warren E. Peterson, classified him as a "trained officer," which entitled Warford to additional compensation under Article 28 of the collective negotiations agreement then in effect (CP-1, p. 42).
5. Warford's assignments as a sheriff's officer from the date of his hire were as follows: From his date of hire to June 1, 1985 he served writs and warrants; from June 1, 1985 to mid-October 1985 he was assigned to Courtroom No. 1 or Courtroom No. 2; and from mid-October 1985 to date he has been assigned to the metal detector in Courtroom No. 2, except for parking lot duty for two to three weeks in December 1985 and January 1986.
6. About three months after Warford was hired, the Sheriff asked the Police Training Commission for a waiver of training for Warford, based upon his State Police Academy training in 1975, supra . This request for a waiver was denied because more than two years had elapsed since Warford terminated his employment with the Mercer County Prosecutor in 1980. Nevertheless, the Sheriff did not reduce Warford to the category of "untrained" under the agreement (CP-1, supra), which would have resulted in a slight reduction in pay.
5/ Warford was employed by the Mercer County Prosecutor between 1975 and 1980 and attended the New Jersey State Police Training Academy for 13 weeks in 1975.
7. Warford sought to resign as a sheriff's officer sometime in February or March 1985 but the Sheriff and Undersheriff Frank J. Schumann persuaded him to reconsider, which he did. Within about a month thereafter Warford submitted a second resignation and this time the Sheriff again "talked him out of it" and the Sheriff ripped up the resignation letter.
8. As of May 1985, the Sheriff had three female sheriff's officers out of a complement of eleven sheriff's officers. The three females at that point in time were Elizabeth Serridge, Gail Justin and Anna Mary Gordeuk. Serridge resigned as of May 17, 1985, and Gordeuk became ill with cancer and worked only sporadically thereafter. The Sheriff was in urgent need of a female replacement for Serridge and on May 17th he recommended the hiring of Patricia A. Seckrettar, whose hiring was approved on May 28, 1985 (R-4 & R-5). Seckrettar was scheduled to commence employment as a sheriff's officer on June 10, 1985, having been interviewed twice in the Spring and mid-May 1985.
9. In the latter part of May 1985, Warford was told by the Sheriff and Schumann that he was going to be sent to the Middlesex County Police Academy with another sheriff's officer, Peter Hollender, who had also been hired on February 4, 1985. Hollender, who had had no prior police training, testified that he
was told in mid-May that he was going to the Middlesex County Police Academy. 6/
10. On May 24, 1985, the Sheriff sent a memo to Warford, advising him that he was scheduled for a stress test on May 29, 1985 (CP-28) and Warford undertook the test on that date (CP-6).
11. Also, on May 24th, the Sheriff sent a memo to Warford and Hollender, outlining the items needed for training at the Middlesex County Police Academy (CP-27).
12. On May 28, 1985, Warford and Hollender met with the Sheriff to discuss either obtaining a County vehicle to attend the Police Academy or to be reimbursed for mileage for use of a personal vehicle. The Sheriff stated that Warford and Hollender could not be reimbursed for mileage and that he doubted that a County vehicle could be obtained (CP-5). The claim for reimbursement for mileage at the rate of 20 4 per mile was based on Article 16 of the agreement (CP-1, p. 30).
13. On May 30th the Sheriff sent a memo to Warford and Hollender, giving them directions to the Middlesex County Police Academy (CP-7). On the same date, May 30, 1985, Warford filed a grievance with Schumann, regarding his and Hollender's meeting with the Sheriff on May 28th wherein the Sheriff denied their request for
6/ Sometime in May 1985 Schumann was able to obtain two "training slots" at the Middlesex County Police Academy for eight weeks' duration beginning in or around June 10, 1985. Although the usual duration of training is 13 weeks, the eight-week session was approved by the Police Training Commission.
reimbursement for mileage for attending the Middlesex County Police Academy training program (CP-5). Warford claimed mileage was due under Article 16 of the agreement, supra.
14. On or about May 31, 1985, Warford learned that he was being "pulled" from training at the Middlesex County Police Academy. Hollender testified without contradiction that in or around that date he was called into the Sheriff's office and told that a female officer was going to the Police Academy for training. Hollender also testified without contradiction that the Sheriff stated to him that the reason that Warford was not going to the Police Academy was that he had "put in for mileage," adding that he was tired of putting up with Warford's "crap" (3 Tr 67). 7/
15. Warford testified, essentially without contradiction, that on May 31, 1985, in a telephone conversation with Schumann, Schumann stated that the Sheriff was upset over the grievance and that's why Warford was being pulled from the Police Academy for filing the grievance (1 Tr 54). The Sheriff did not directly deny giving such an impression by word or deed to Schumann, testifying only that he did not tell Warford he was being replaced because he had claimed mileage. Likewise, Schumann made no direct denial of his alleged statement to Warford by telephone on May 31st. Accordingly, the Hearing Examiner credits Warford's version of his conversation with Schumann on that date.
7/ Hollender filed for mileage one week after graduating from the Police Academy on August 8, 1985. His claim was never paid and he filed a grievance at the end of 1985.
16. Seckrettar, who commenced employment on June 10th, had been told shortly before beginning employment that she was to go to the Middlesex County Police Academy. Seckrettar also had been told by the Sheriff in the Spring of 1985 that she would be attending the Police Academy in Sea Girt, New Jersey, in February 1986 (4 Tr 4, 5). She also testified that she was told by the Sheriff in the first week in June 1985 that she would be going to the Middlesex County Police Academy June 10th and that since "...there was a problem with one of the officers being reimbursed for mileage...I would be going in his place with Pete Hollender" (4 Tr 5). Seckrettar later testified that she learned that the officer in question was Warford (4 Tr 22). 8/ On the basis of Seckrettar's testimony and the suspect timing, the Hearing Examiner does not credit the Sheriff's testimony that he pulled Warford from attending the Police Academy because he had prior training and because he determined that he should send Seckrettar, who was replacing Serridge for jury duty in September 1985. Also, for the same reason, the Sheriff's testimony that he retained Hollender because he had had no training, unlike Warford, is not credited.
17. On June 3, 1985, Schumann sent Warford a memo which stated, in part, "Since your attendance has been cancelled, this
8/ Seckrettar also claimed reimbursement for mileage after completing her training at the Police Academy, which has not been paid. She also filed a grievance in late 1985 or early 1986. The Sheriff has not retaliated against her for the filing of the grievance.
grievance becomes a mute (sic) question..." (CP-4). On the same date Warford responded to the Sheriff, defending the filing of his grievance for mileage and citing the names of five other sheriff's officers who were either reimbursed for mileage or given a County vehicle (CP-9).
18. On June 4th, Warford spoke to the Sheriff again regarding his mileage claim and Warford testified without contradiction that the Sheriff said that Warford's filing a grievance was harassment "...and he was tired of people filing grievances against him..." (1 Tr 61). Warford also testified without contradiction that in the same conversation on June 4th, the Sheriff told him that he was being reassigned from writs and warrants to Courtroom No. 2 and that he would be there "...for a long time because I filed a grievance..." (1 Tr 63).
19. Wanda Young has been the Sheriff's secretary since June 15, 1985. During the Summer of 1985, Young would, on her lunch hour, sun herself in a nearby park. On August 15th Warford and another sheriff's officer, Jeffrey Farneski, observed Young sunning herself and Warford took her picture, unbeknownst to her, with a Polaroid camera. Later that day Warford displayed the picture to Undersheriff James L. Totten. Warford testified that either on that day or the next day he destroyed the picture. However, Young learned of the taking of the picture on August 15, 1985, and wrote a letter to the Sheriff the same day, in which she objected to her picture being taken without her permission and expressed resentment
at the fact that it was shown to other individuals in the Sheriff's office (R-1). Lisa Pipolo, the Office Manager, and a witness for Warford, confirmed that Warford showed the picture of Young to Totten. The Sheriff testified that when he received the written complaint from Young (R-1, supra ) he spoke to Warford and gave him a verbal reprimand. Further, the Sheriff told Warford to stay away from Young and then reassigned Warford to Courtroom No. 1. The Sheriff testified credibly that he did not reprimand Warford or reassign because he had filed a grievance on May 30, 1985 regarding mileage (CP-5, supra ). On August 16th the Sheriff wrote a memo to file, reciting that he had spoken to Warford, regarding Young's complaint, that Warford admitted to taking the picture of Young and concluded by stating that Warford was given a "strong verbal warning" (R-2). Exhibits R-1 and R-2 were not immediately placed in Warford's personnel file but were later placed in his file at the request of the Sheriff's counsel when a later incident occurred in October 1985, infra.
20. During the first week in September 1985, Warford was working with a fellow sheriff's officer, Anna Mary Gordeuk, in Courtroom No. 1. Farneski was present during the time when a conversation occurred between Warford and Gordeuk, which Gordeuk later claimed in a written statement to the Sheriff (CP-15) constituted a threat, i.e., she said Warford told her to "watch out." Warford denied this. Farneski testified that Warford never made any threatening remarks to Gordeuk. However, Hollender was
also present during the foregoing conversation and testified that Warford at one point said, "Watch out." Hollender also stated that he would not have taken Warford's remark as a threat. Given the testimony of Warford, Farneski and Hollender as to the this incident of an alleged threat to Gordeuk, the Hearing Examiner finds as a fact that Warford told Gordeuk to "watch out," which Gordeuk took as a threat. Gordeuk's statement (CP-15), obtained by the Sheriff on October 23, 1985, and a memo to file from the Sheriff (CP-14) were placed in Warford's personnel file in October, infra.
21. Sometime in September, 1985, there was a meeting of sheriff's officers convened by the Sheriff and Schumann where the subject was assignment to the metal detector in Courtroom No. 2. Warford had since in or about August 15, 1985, been the subject of periodic assignments to this metal detector. It was agreed by all of Warford's witnesses, who testified regarding this meeting, 9/ that the Sheriff stated that assignments to the metal detector in Courtroom No. 2 would be on a rotating basis. The Sheriff testified to the same effect. One or more of the sheriff's officers in attendance at this meeting stated that the metal detector in Courtroom No. 2 was considered a "punishment post," which the Sheriff denied. However, Riegel agreed with the Sheriff by
9/ Hollender, Seckrettar, Ralph Riegel and Alan M. Miller.
testifying that metal detector No. 2 was never considered as a "punishment post." 10/
22. In mid-October 1985, Warford noticed a memo on the bulletin board in the office and, thinking it humorous, he removed it and made a photocopy on the office duplicating machine. On October 17, 1985, at about 4:25 p.m., Warford was called into the Sheriff's office and handed a Notice of Minor Disciplinary Action, i.e., a two-day suspension on October 22nd and October 23rd (CP-10). 11/ The Sheriff testified that he became aware of the memo, which Warford had photocopied, on October 16th when Anthony Critelli complained that the memo referred to him (see reference on memo to "wear a white shirt"). Warford acknowledged on cross-examination that this reference to "white shirt" could apply to Critelli. Sheriff's officer Jack Meyrick, a witness for the Charging Party, became angry with Warford, whom he thought wrote the offending memo and felt that a reference on the memo referred to him (see reference to "cause mistrial and/or constantly being a fuckup"). Warford acknowledged that this latter reference on the offending memorandum could have applied to Meyrick. It was because
10/ Warford insisted that metal detector No. 2 was a "punishment post" since it involved standing all day unlike assignment to metal detector No. 1 where the Sheriff permitted the sheriff's officers to sit although there was no written directive to this effect.
11/ A copy of the memo which Warford saw on the bulletin board and which he photocopied is attached to CP-10).
of the ease with which the offending memo could be imputed to various personnel in the Sheriff's office that the Sheriff decided to discipline Warford, based solely on Warford's having duplicated the offending memo, and notwithstanding that there was no evidence adduced that Warford was its author. On October 17, 1985, the Sheriff wrote a memo to Warford's personnel file regarding the memorandum, which recited the events leading up to the issuance of the notice of two-day suspension (see attachment to CP-10 "Derogatory Memorandum"). The Sheriff credibly denied that the Notice of Minor Disciplinary Action (CP-10, supra) issued because Warford had filed a grievance on May 30, 1985.
23. On October 18, 1985, Warford filed a grievance over his suspension (CP-8) and on October 23rd he was notified by the clerk of the Board of Chosen Freeholders that a hearing was being scheduled on his grievance for November 12, 1985 (CP-12). 12/
24. As previously found (see Finding of Fact No. 20, supra ) the Sheriff obtained a statement from Gordeuk on October 23, 1985, in which she alleged that Warford had threatened during the first week of September (CP-15). As a result, the Sheriff wrote to a memo to file on the same date (CP-14) and the two documents were
12/ A hearing was held as scheduled and the decision of the Freeholders was to uphold the discipline but to convert the two-day loss of pay to a fine of $50.
placed in Warford's personnel file in or around that time.13/ On October 23rd the Sheriff reassigned Warford to metal detector No. 2, which assignment has continued through the dates of hearing in this matter except for a brief stint in the parking lot in December 1985 and January 1986, infra . While Warford perceives this assignment to metal detector No. 2 as retaliation for having filed two grievances, the Sheriff testified credibly and without contradiction that he decided to make this assignment in order to minimize Warford's contact with other sheriff's officers, citing Meyrick's anger with Warford over the offending memorandum and Warford's problems with Gordeuk and Young, supra.
25. As evidence of disparate treatment between Warford and other sheriff's officers, Warford testified that on November 6, 1985, he saw Critelli looking at two cartoons on the bulletin board, one entitled "How to Spot a Rookie" (CP-16) and the other entitled "How to Spot a Veteran" (CP-17). Warford testified further that he learned from two secretaries that Critelli had placed them on the bulletin board, which Critelli later confirmed, and also that the Sheriff saw them. Critelli was not disciplined. Also, on the same date, November 6th, Warford saw Meyrick photocopy a bogus letter entitled "Playgirl Magazine - Centerfold Division" (CP-18), which
13/ Warford obtained access to his personnel file on October 25, 1985, and found therein the statements of Young and Gordeuk as well as the memos by the Sheriff (see R-1, R-2, CP-14 & CP-15, supra).
Meyrick distributed to Schumann and others. Meyrick received no discipline.
26. On November 25, 1985, Warford was assigned to patrol the second floor of the Court House alone. This was during the Thanksgiving holiday. Warford asked Schumann why he was assigned to work alone and Warford testified without contradiction that Schumann said that Warford was going to get all of the "shit assignments" because he had filed a grievance (2 Tr 26).
27. Al Marlott, age 70, who is employed by the Sheriff as a Security Guard, regularly works on the County parking lot behind the Court House. According to Warford, Marlott is permitted to sit in his car at the entrance to the parking lot and check incoming and outgoing cars. Marlott went on vacation around December 12, 1985, and Warford was assigned in his stead by a memo from the Sheriff dated December 16, 1985 (CP-21). This memo sets forth the hours for Warford in the parking lot from 8:00 a.m. until 4:00 p.m. The memo originally did not contain a lunch period, which was added on December 17th after Warford complained that it violated CP-1, supra . During the duration of Warford's assignment, set forth in the memo as being from December 17, 1985 to January 6, 1986, Warford was not permitted to go into the administration building as had Marlott. Warford was, however, commencing with the third or fourth day of his assignment, permitted by the Sheriff to have a TV, radio and heater in his car, using an extension cord from the building. Also, the Sheriff testified that he permitted Warford to sit in his
car. Warford perceived the parking lot assignment as retaliation for his filing of grievances in May and October of 1985. Warford adduced testimony from Alan M. Miller that on December 26, 1985, he was assigned to the parking lot for 20 minutes and was permitted to leave this assignment after such a short period. Also, sheriff's officer Drew L. Stephens testified that in December 1985, he was assigned to the parking lot for 45 minutes or an hour and did not work the full shift of 8:00 a.m. to 4:00 p.m.
28. On December 23, 1985, Joan Gogal, the Account Clerk in the Sheriff's office, told Warford that he had to use his vacation and personal days by December 31, 1985. Gogal testified that she also communicated the same information to all other sheriff's officers. Thereafter Warford did as he was requested, taking his remaining two personal days on December 26 and December 27, 1985 (CP-25, Attachment "H"). Warford was ill and took two sick days on January 2 & 3, 1986. Gogal telephoned him on January 3rd and asked him to bring in a doctor's note, testifying that either the Sheriff or Schumann told her to call Warford. Warford asked Gogal to check the five-day sick rule and when she reported this to Schumann he told her not to return a call to Warford. Thereafter Warford took sick days on January 4 and January 6, 1986 (CP-25, Attachment "H"), returning to work on January 7th. The Sheriff testified credibly and without contradiction that he asked Warford for a doctor's note because of a pattern of absences over weekends. Warford provided a doctor's note and there was no discipline involved. Following up on
his concern about a pattern of absences around weekends, Gogal testified that the Sheriff asked her to check Warford's absentee record in or around January 21, 1986 and the results are set forth in CP-25, Attachment "H." Warford acknowledged that the Sheriff never denied him an opportunity to take time off to take his father to the doctor, an event which occurred with some regularity.
29. Since the attendance of Hollender and Seckrettar at the Middlesex County Police Academy in June, July and August 1985, the Sheriff has sent Farneski and Miller, each of whom were hired in August 1985, for police training beginning early in 1986. Farneski was sent to Sea Girt, which involved staying over night. Warford rejected such an assignment on the ground that he could not stay over night due to the illness of his father. Miller was sent to Morris County and the Sheriff testified that the reason for this was because of the necessity of Miller gaining "K-9 experience." The Sheriff also acknowledged that Warford's prior problem with three co-employees, supra , was a factor in sending Farneski for police training plus the added factor of Warford having rejected taking police training at Sea Girt.
30. Although Warford testified in several instances that he was denied access to his personnel file in retaliation for having filed two grievances, the Hearing Examiner finds as a fact that he had adequate access, noting that he examined his personnel file in April 1985, October 25, 1985, December 23, 1985 and January 1986.
31. During the final day of hearing in this matter the Sheriff, consistent with the representations set forth in I.R. No. 86-14, supra , caused to be introduced in evidence two recent letters from the Police Training Commission. In a letter dated January 28, 1986, Leo A. Culloo, the Administrator of Police Services for the Commission, advised the Sheriff that in accordance with his request for an extension of training time for Warford, the matter of the Sheriff's request would be presented to the next meeting of the Commissioners in March 1986 (C-4). Under date of April 4, 1986, Culloo advised Schumann that the Commissioners had approved the Sheriff's request for an extension of training time for Warford on the condition that he is enrolled in the Morris County Police Academy in the class starting in the early part of September 1986 (C-5). Thus, between the action undertaken by the Sheriff and the action of the Police Training Commission, Warford's employment status has been preserved, pending his successful completion of police training in September at the Morris County Police Academy.
DISCUSSION AND ANALYSIS
The Sheriff Violated ' ' 5.4(a)(1) And (3)
Of The Act When He "Pulled" Gary W.
Warford From The Middlesex County
Police Academy Because Of Warford's
Having Filed A Grievance On May 30, 1985 .14/
The above findings of fact leaves no doubt whatever that the Sheriff's stated reason for "pulling" Warford from attendance at
14/ Warford adduced no evidence whatsoever in support of his allegation that the Sheriff violated ' 5.4(a)(4) of the Act and the Hearing Examiner will, therefore, recommend dismissal as to this allegation.
the Middlesex County Police Academy, scheduled for June 10, 1985, was pretextual. The evidence is overwhelming that Warford was selected by the Sheriff to attend the Academy with Hollender in May 1985, and that the conduct of the Sheriff was consistent with this decision up to the date of Warford's filing of the mileage grievance on May 30, 1985. Consider, for example, the documentary evidence: On May 24, 1985, the Sheriff sent a memo to Warford and Hollender listing clothing and personal items required for the Police Academy (CP-27); on the same date, May 24th, the Sheriff sent Warford a memo, scheduling him for a stress test on May 29, 1985 (CP-28); and on May 30th, the date on which Warford filed his grievance, Schumann sent a memo to Warford and Hollender, giving them directions to the Middlesex County Police Academy and stating that they should be there at 7:00 a.m. sharp on Monday, June 10, 1985 (CP-7). Note is also taken of Schumann's memo to Warford of June 3, 1985, responding to the May 30th grievance, in which he states that since his attendance has been cancelled and the subject matter of the grievance was the use of the County vehicle to attend the Police Academy, the grievance has become "a mute (sic) question" (CP-4).
In addition to the above documentary evidence, there was considerable damaging testimony elicited, which reinforces the conclusion of the Hearing Examiner that the Sheriff "pulled" Warford from the attendance at the Police Academy because he filed a mileage grievance, related to attendance at the Police Academy, on May 30, 1985. For example: (1) The testimony of Hollender that the Sheriff told him on or about May 31, 1985, that Warford was not going to the
Police Academy because he had "put in for mileage," adding that he was tired of putting up with Warford's "crap"; (2) Warford's credited testimony that on May 31st Schumann told him that the Sheriff was upset over the grievance and that's why Warford was being pulled from the Academy; (3) the testimony of Seckrettar that she was being sent to the Police Academy on June 10th since "...there was a problem with one of the officers being reimbursed for mileage...," whom she later learned was Warford and the related testimony of Seckrettar that she had first been told by the Sheriff that she would be going to the Police Academy in February 1986, then learning in the first week in June 1985, that she was going to the Police Academy on June 10th; and (4) Warford's uncontradicted testimony that on June 4, 1985, the Sheriff told him that his filing of a grievance was harassment and that he was being reassigned to Courtroom No. 2 and that he would be there "...for a long time because I filed a grievance..." (see Findings of Fact Nos. 14-16 & 18, supra).
In assessing employer motivation in "dual motive" cases, the New Jersey Supreme Court in Bridgewater Twp. v. Bridgewater Public Works Ass'n., 95 N.J . 235 (1984) established the following two-part test: (1) the 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 decision to discipline; (2) once this is established, the employer has the burden of demonstrating that the same action would have taken place even in the absence of protected activity (95 N.J. at
242). The Court in Bridgewater further refined the above test by adding that the protected activity engaged in must have been known by the employer and, also, it must be established the employer was hostile towards the exercise of the protected activity.
First, as to the exercise of protected activity by Warford, the Commission has several times held that the filing of a grievance is protected activity: Lakewood Bd. of Ed., P.E.R.C. No. 79-17, 4 NJPER 459, 461 ( & 4208 1978); Dover Municipal Utilities Authority, P.E.R.C. No. 84-132, 10 NJPER 333 (& 15157 1984); and Pine Hill Bd. of Ed ., P.E.R.C. No. 86-126, 12 NJPER ( & 1986). Thus, when Warford filed his May 30th grievance regarding a claim for mileage under the collective negotiations agreement (CP-1) he was clearly engaging in activity, which is protected under the Act.
The above-recited documentary and testimonial evidence leaves no doubt whatever that Warford's exercise of protected activity was a substantial or a motivating factor in the decision of the Sheriff to "pull" Warford from the Middlesex County Police Academy within a day or hours of the date on which he filed the mileage grievance. The above evidence likewise leaves no doubt that the Sheriff was hostile to Warford's protected activity of filing a grievance: see for example, Hollender's uncontradicted testimony that the Sheriff said to him on or about May 31st that he was tired of putting up with Warford's "crap." Also, there is clear evidence of hostility in the Sheriff's statement to Warford on June 4, 1985, that he was going to be at Courtroom No. 2 "for a long time" because he had filed a grievance.
Warford having met the first part of the Bridgewater test, supra , by having made out a prima facie case sufficient to support an inference that his filing of a grievance was a "substantial" or a "motivating" factor in the Sheriff's decision to withdraw him from attending the Police Academy, the Hearing Examiner must now examine whether the Sheriff has established by a preponderance of the evidence that the same action would have taken place even in the absence of Warford's protected activity. The Sheriff has woefully failed in meeting the burden of proof in this regard. This conclusion is supported by the following facts, namely, that Warford was hired and paid as a "trained" sheriff's officer; that the Sheriff and Schumann twice talked Warford out of resigning, an indication that they wished to continue his employment; that notwithstanding that Serridge resigned on May 17th and Gordeuk was ill, the Sheriff selected Warford along with Hollender to attend the Police Academy, beginning June 10th; and that the Sheriff followed through on his decision to send Warford and Hollender to the Police Academy by a series of memos, one of which scheduled him for a stress test on May 29, 1985.
The foregoing recital of facts and events from Warford's date of hire on February 4th until May 30th, indicates to the Hearing Examiner that Warford was performing satisfactorily and was headed for his police training, which he needed to continue employment since the Police Training Commission had not granted him
a waiver (see Finding of Fact No. 6, supra).15/ Warford having demonstrated that he was a satisfactory sheriff's officer through May 1985 when he was selected for the Police Academy, it strains credulity to assign any reason other than illegal discrimination for his having been pulled from the Academy contemporaneous with his filing a grievance on May 30th. The reasons given by the Sheriff are deemed pretextual.
It is doubtless true that when Serridge resigned on May 17, 1985 and Gordeuk was ill the Sheriff needed another female officer. Since each newly appointed sheriff's officer is required to obtain police training within a maximum period of 18 months ( N.J.S.A. 52:17B-69, supra ), Seckrettar, who replaced Serridge, would have to have received such training by December 10, 1986 at the latest. Interestingly, Seckrettar had been told prior to hire that she would be going to the Police Academy in February 1986. Thus, there was no clear need on the part of the Sheriff to pull Warford and substitute Seckrettar in June 1985, other than to retaliate against Warford for his having filed a grievance.
15/ N.J.S.A . 52:17B-69 provides that an individual appointed as a police officer must take a police training course in order to obtain permanent appointment and that the time period for obtaining such training is one year with a possible extension of six months. Recognizing this, the Commission designee in I.R. No. 86-14, supra , restrained the Sheriff from terminating Warford because of the inability to comply with the time constraints in N.J.S.A . 52:17B-69. The Sheriff has complied with this restraint and Warford is now scheduled for enrollment in the Morris County Police Academy, starting in the early part of September 1986 (see Finding of Fact No. 31, supra).
Thus, the Hearing Examiner concludes that the Sheriff has failed to prove a legitimate business justification in his decision to cancel Warford's Police Academy training when he did. So much for the Sheriff's violation of ' ' 5,4(a)(1) and (3) of the Act in connection with Warford's having filed a grievance on May 30, 1985.
The Hearing Examiner now takes up various incidents, which occurred after early June of 1985. Th Hearing Examiner is persuaded for the most part that Warford has failed to prove by a preponderance of the evidence that the post-May grievance events constituted retaliation by the Sheriff against Warford for having filed the initial grievance on May 30th. The Findings of Fact, regarding the events which occurred on and after June 1985, commence with No. 19 and conclude with No. 30, supra.
First, it is concluded that the Sheriff acted with legitimate justification in giving Warford a "strong verbal warning" in connection with the Wanda Young incident and placing a memorandum to that effect in his personnel file. The same applies to the Gordeuk incident where the Hearing Examiner has found that Warford made the statement that she should "watch out," which Gordeuk took as a threat. Thus, that incident also warranted the placement of a memo in Warford's personnel file.
Regarding the meeting of certain sheriff's officers and the Sheriff in September 1985, regarding the rotation of assignments to metal detector No. 2, the Hearing Examiner concludes that Warford's proofs are insufficient to establish that this assignment was
considered a "punishment post." In reaching this conclusion, the Hearing Examiner notes that Riegel, who was called as a witness by Warford, agreed with the Sheriff that metal detector No. 2 was never considered a "punishment post." The Hearing Examiner does not accept the testimony that this assignment was a "punishment post" merely because it involved standing all day.
The series of events surrounding Warford's observing a memo on the bulletin board and photocopying it, clearly afforded the Sheriff a legitimate basis to impose a two-day disciplinary suspension to be served on October 22 and October 23, 1985. While Warford considered the memo "humorous," he conceded on cross-examination that the various statements in the memo could be attributed to particular sheriff's officers, one of whom being Meyrick, who became visibly angry with Warford, who he thought authored the offending memo (see Finding of Fact No. 22, supra ). Plainly, for Meyrick to have surmised that Warford might have been the author gives rise to an inference that Warford must have engaged in conduct surrounding the memo which would have caused Meyrick to so surmise. The Hearing Examiner concludes that Warford must not only have made a photocopy of the memo on the office duplicating machine but must have either circulated it or discussed it with others in the department. This conclusion is reached, notwithstanding that there was no evidence adduced that Warford was in fact the author. As noted above, it was because of the ease with which the offending memo could be imputed to various personnel in
the office that the Sheriff decided to impose discipline. This the Sheriff had the right to do and the two-day suspension plainly was tailored to the magnitude of the offense. 16/
The Hearing Examiner has credited the testimony of the Sheriff that he decided to assign Warford to metal detector No. 2 on October 23, 1985, in order to minimize Warford's contact with other co-employees, namely, Young, Gordeuk and Meyrick, each of whom had personally had problems with Warford, supra.
The Hearing Examiner does not accept Warford's contention that the two-day disciplinary suspension, supra , was imposed because of his having filed the mileage grievance in May since the evidence plainly does not causally connect the two events. Further, the Hearing Examiner does not accept Warford's contention that he was assigned to metal detector No. 2 on October 23rd as retaliation for having filed his initial grievance in May and a second grievance on October 18, 1985. Again, the reason for this conclusion is the lack of any causal connection between the grievance filing and the metal detector assignment. The Sheriff provided a legitimate business
16/ The Hearing Examiner finds no significant disparate treatment between Warford and other sheriff's officers regarding the circulation of and placing on the bulletin board cartoons or bogus letters (see Finding of Fact No. 25, supra ). The three exhibits proffered at the hearing (CP-16 to CP-18) appear deserving of the category "humorous" and would not appear to warrant discipline, contrary to Warford's involvement in the offending memo, supra.
justification for his decision, namely, minimizing Warford's contact with co-employees with whom he had had past problems.
The evidence adduced regarding Warford's assignment to the parking lot for several weeks does not appear to warrant the conclusion that Warford was so assigned in retaliation for filing two grievances. He was given a lunch hour and was permitted by the Sheriff to have a T.V., radio and heater in his car, using an exten-
sion cord from the building. This was consistent with the manner in which the regular Security Guard performed his duties in the parking lot. The fact that two other sheriff's officers, Miller and Stephens, received assignments of shorter duration does not appear to the Hearing Examiner to add support to Warford's contention that he was retaliated against by the Sheriff when he was assigned to the parking lot between December 17, 1985 and January 6, 1986.
The Hearing Examiner is not impressed that the Sheriff engaged in any illegal conduct when he requested that Warford bring in a doctor's note after being out ill on January 2 and January 3, 1986. The Sheriff's testimony has been credited that he requested such a note because of a pattern of absences over weekends. Warford was not disciplined and the Sheriff frequently permitted Warford to take time off in order to take his father to the doctor.
There is no convincing evidence that Warford was ever denied access to his personnel file in retaliation for having filed two grievances. He first examined his file in April 1985, admittedly before any problems arose, and later examined it on three occasions in October, December and January 1986.
Since Hollender and Seckrettar attended the Middlesex County Police Academy between June and August 1985, the Sheriff has sent Farneski and Miller for police training in early 1986, each of whom were hired in August 1985. Warford could have been one of the attendees, but rejected selection on the ground that attending at Sea Girt involved staying over night and that this was not consistent with his attending to the illness of his father. This was Warford's decision and not the Sheriff's, clearly indicating that the Sheriff was seeking to obtain police training for Warford consistent with the Order contained in I.R. No. 86-14, supra.
Finally, the Hearing Examiner finds and concludes that Warford did prove one instance of retaliation for the filing of a grievance. This occurred on November 25, 1985, when Warford was assigned to patrol the second floor of the Courthouse alone during the Thanksgiving holiday. Warford testified without contradiction that Schumann told him that he was going to get all of the "shit assignments" because he had filed a grievance (see Finding of Fact No. 26, supra).
Based on all the foregoing, the Hearing Examiner finds and concludes that the Sheriff violated ' ' 5.4(a)(1) and (3) of the Act by "pulling" Warford from attendance at the Middlesex County Police Academy in June 1985 and by the assignment of Warford to patrol the second floor of the Courthouse alone on November 25, 1985.
* * * *
Upon the foregoing, and upon the entire record in this case, the Hearing Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent Sheriff violated N.J.S.A. 34:13A-
5.4(a)-(1) and (3) when he "pulled" Gary W. Warford from attendance at the Middlesex County Police Academy between May 30 and June 3, 1985, and by assigning Warford to patrol the second floor of the Courthouse alone on November 25, 1985.
2. The Respondent Sheriff did not violate N.J.S.A. 34:13A-
5.4(a)(4) by his conduct herein.
RECOMMENDED ORDER
The Hearing Examiner recommends that the Commission ORDER:
A. That the Respondent Sheriff cease and desist from:
1. Interfering with, restraining or coercing his employees in the exercise of the rights guaranteed to them by the Act, particularly, by retaliating against employees such as Gary W. Warford for filing grievances and thereafter withdrawing them from police training or giving them onerous assignments.
2. 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 the Act, particularly, by retaliating against employees such as Gary W. Warford for filing grievances and thereafter withdrawing them from police training or giving them onerous assignments.
B. That the Respondent Sheriff take the following affirmative action:
1. Take all necessary and proper steps to assure that Gary W. Warford is enrolled at the Morris County Police Academy in the class commencing in the early part of September 1986 in accordance with the approval of the Commissioners of the Police Training Commission at the meeting held by them on April 2, 1986 (C-5).
2. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix "A." Copies of such notice on forms to be provided by the Commission shall be posted immediately upon receipt thereof and, after being signed by the Respondent's authorized representative, shall be maintained by it for at least sixty (60) consecutive days. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by other materials.
3. Notify the Chairman of the Commission within twenty (20) days of receipt what steps the Respondent has taken to comply herewith.
C. That the allegations in the Unfair Practice Charge, as amended, that the Respondent Sheriff violated N.J.S.A. 34:13A-
5.4(a)(4) be dismissed in their entirety.
Alan R. Howe
Hearing Examiner
Dated: June 16, 1986
Trenton, New Jersey
I WILL NOT interfere with, restrain or coerce my employees in the exercise of the rights guaranteed to them by the Act, particularly, by retaliating against employees such as Gary W. Warford for filing grievances and thereafter withdrawing them from police training or giving them onerous assignments.
I WILL NOT discriminate 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 the Act, particularly, by retaliating against employees such as Gary W. Warford for filing grievances and thereafter withdrawing them from police training or giving them onerous assignments.
I WILL take all necessary and proper steps to assure that Gary W. Warford is enrolled at the Morris County Police Academy in the class commencing in the early part of September 1986 in accordance with the approval of the Commissioners of the Police Training Commission at the meeting held by them on April 2, 1986 (C-5). ***** End of HE 86-65 ***** |