H.E. NO. 87-34 1.
H.E. NO. 87-34
STATE OF NEW JERSEY
BEFORE A HEARING EXAMINER OF THE
PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the Matter of
UMDNJ - RUTGERS MEDICAL SCHOOL,
Respondent,
-and- Docket No. CI-86-37-162
ROSE MARIE MENZIUSO,
Charging Party.
Appearances:
For the Respondent,
W. Cary Edwards, Attorney General
(Barbara Harned, D.A.G.)
For the Charging Party,
Oxfeld, Cohen & Blunda
(Mark J. Blunda, of counsel)
HEARING EXAMINER'S REPORT
AND RECOMMENDED DECISION
On January 15, 1986, Rose Marie Menziuso filed an amended unfair practice charge alleging that Rutgers Medical School, UMDNJ ("University" or "Medical School") violated sections 5.4(a)(1), (3), (5) and (7) 1/ of the New Jersey Employer-Employee Relations Act,
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
Footnote Continued on Next Page
N.J.S.A. 34:13A-1 et seq . ("Act"). Menziuso alleged that the University harassed her because she requested an upgrade of her head clerk title and filed grievances. She also alleged that the University refused to process the grievances and refused her request for union representation at a meeting with her supervisors.
On April 24, 1986, the Director of Unfair Practices issued a Complaint and Notice of Hearing. The Director refused, however, to issue a complaint on those portions of Menziuso's charge which allege that the University refused to process her grievances. 2/
On May 12, 1986, the University filed an Answer denying any violation of the Act.
On June 9 and 11, 1986, I conducted a hearing. The parties examined witnesses and introduced documents. They waived oral argument but filed briefs, the last of which I received on August 5, 1986.
Based on the entire record, I make the following:
1/ Footnote Continued From Previous Page
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; (7) Violating any of the rules and regulations established by the commission."
2/ The collective negotiations agreement between the University and the union representing Menziuso contains a grievance procedure culminating in binding arbitration. Therefore, the section 5.4(a)(5) allegations were dismissed. See, Englewood Bd. of Ed., E.D. No. 76-36, 2 NJPER 175 (1976).
FINDINGS OF FACT
The Medical School is a public employer within the meaning of the Act and is subject to its provisions. Menziuso is a public employee within the meaning of the Act and is subject to its provisions. She was hired in September 1984 as a head clerk in the Medical School's Financial Aid Office at Piscataway. She maintains financial aid records. Working with her in the Financial Aid Office are Hope Lewis, a Senior Financial Aid Assistant; Elaine Papas, a Coordinator of Financial Aid; and Helen Vlachakis, an Associate Director of Financial Aid. Vlachakis is Menziuso's immediate supervisor. Michael Katz is the University's Director of Financial Aid. Roger Hanos is the Manager of Human Resources.
Menziuso brought to her job a great deal of work experience, particularly in accounting. She had worked in the import/export business in New York; had worked 8 or 9 years with Johnson and Johnson; and, for approximately three years, had held the title of Grants Administrator with the University. Katz interviewed Menziuso for the head clerk job. He was concerned that she might be overqualified. Menziuso assured him that the head clerk job was what she was looking for.
The University uses the Hayes system of evaluation. The head clerk title is classified at Range 15. Menziuso was hired at step 1 on the Range 15 salary schedule. Katz testified that, due to budget limitations, all new hires in the financial aid office start at step one.
In September 1985, Vlachakis completed Menziuso's first performance evaluation. She rated Menziuso "outstanding" in all categories of performance and noted that Menziuso was an exceptional employee and an asset to the office. Menziuso signed the evaluation but noted that she felt she "should be placed at step 4 [of the salary schedule] with [her] qualifications and quality of work" (CP-1). This was the first time that Menziuso raised the issue of her placement on the salary guide. She had apparently heard that an employee in another department had been hired at step 4. Menziuso also asked Vlachakis about upgrading the head clerk title. Vlachakis told her that she would discuss the matter with Katz.
Menziuso met with Vlachakis and Katz on October 25, 1985. In anticipation of this meeting, Menziuso prepared a job description and sent it to Katz. At the meeting Katz told Menziuso that he saw no reason to reclassify the head clerk title. (The title had been upgraded in 1980 and again in 1981 or 1982.) Katz did state that he would reconsider Menziuso's request when the financial aid office became automated. He also told Menziuso that he would talk to Hanos about a reclassification.
On November 6, 1985, Menziuso again met with Vlachakis and Katz. Katz informed Menziuso that Hanos shared his opinion about the reclassification. Katz and Vlachakis also discussed some of Menziuso's responsibilities with her, pointing out that she was performing unnecessary tasks, specifically the evaluation of tax returns of students' parents. They discussed a problem about
misunderstood instructions to financial aid staff. Katz also told Menziuso that he and Vlachakis felt that her qualifications surpassed the responsibilities of her title.
On November 12, 1985, Menziuso sent a memo to Hanos requesting a review of her employment status. The memo states:
I respectfully request a review of my employment status in view of the job description...I have been performing since my hire and because of the following developments in my department:
The Secretary (R13) who was bidding on my position (R15), prior to my hire, has now been promoted to R15, placing her at the same level as I, while in the past my position was above hers and my predecessor wasn't nearly doing all that I do.
The Senior Financial Aid person has now been promoted to Coordinator. Yet, why in my job description of 1981, ( which I only received on September 25, 1985 after requesting it ) states I "assist in the preparation of reports?" Spreadsheets which I prepare and constitute a minimum of 80% of the preparation of these reports should make me eligible for my job description to read, "I prepare the reports and she assists." Not that I assist and someone else prepares it when the major portion of the work I do and have done for the past year.
Lastly, my position, HEAD CLERK, R15, requires three or more years of experience in the maintenance of records and statistics, at least two of which shall have been in a financial environment. How then was I, with all my experience placed at Step 1, while the present Senior Financial Aid Assistant with only 7 months experience as a temporary, Needs Analyst at Rutgers University able to have stepped into her Exempt position?
Let me inform you that absolutely never did Michael Katz inform me to discontinue analyzing Budget Status Reports, as he claimed in our discussion of November 6, 1985.
[CP-4].
On the same date, November 12, 1985, Menziuso received a memo from Vlachakis and Katz, dated November 6, 1985. That memo states:
This is to summarize our meeting of November 6, 1985 regarding your position in the Financial Aid Office. As a result of our meeting with Mr. Roger Hanos, in Personnel, you were informed that your current position would not be re-classified at this time as the position is correctly described. We did mention however, that a re-evaluation of the position could possibly take place at a future date, particularly at the time the operation becomes automated.
We discussed some of your responsibilities and indicated that these are aspects of your job that you are doing on your own accord, and are not required such as tax return evaluation. We also told you from this point forward that all questions must be directed to the Assistant Director unless she is not present. Although we did mention this during our meeting, it is not necessary for you to ask these questions in the form of a memo. This is time consuming and can be handled verbally (memo of 11-5-85). In addition, regarding the College Work Study, you were told that an analysis of the monthly budget transaction statements and Labor Distribution are no longer necessary. Instead you will be analyzing a new report prepared by the Newark Grant's Department.
We talked about what appears to be a communications problem in that instructions between staff members are not understood and can change frequently. Communication appeared to be a problem during our meeting today in that it was necessary to repeat points to make sure that we were understanding each other. We will have to work on this during regular office hours so that policies and procedures are clearly understood.
We stated that it was our opinion that your performance and skills during the past year appear to surpass the responsibilities of the Head Clerk position. You indicated to us that you were already looking at postings for another position. We discussed with Roger Hanos and told you that he would work with you in attempting to secure a position for which you may qualify. We even mentioned that he told us of an available position possibly better suited to your background.
Please remember our doors are always open and feel free to discuss these or other issues with us.
[CP-5].
Menziuso claims that the memo (dated November 6, 1985) from Vlachakis and Katz was a response to her "November 12" memo to Hanos. She also claims that it does not accurately depict what occurred at the meeting of November 6, 1985, particularly those portions about her "looking at postings for another position." Hanos assisted Katz and Vlachakis in preparing the memo dated November 6. Hanos and Katz both deny having first seen Menziuso's memo.
I credit Katz's and Hanos' testimony that they and Vlachakis prepared the "November 6" memo before receiving Menziuso's "November 12" memo. The "November 6" memo is dated six days earlier than Menziuso's. Menziuso did, however, date stamp this memo when she received it on November 12, 1985. The dates of the documents notwithstanding, an examination of the memoranda reveals that the Katz/Vlachakis memo is simply not "responsive" to Menziuso's memo. The only topic common to the memoranda is Menziuso's role in the preparation of monthly budget transaction statements. Menziuso does not claim that she did not talk about that with Katz and Vlachakis at the November 6 meeting. She merely claims that Katz had never told her (prior to the meeting) that she was not to prepare the reports. Finally, Katz and Hanos testified in a matter-of-fact and forthright manner about the memo. I credit Menziuso's testimony that she did not receive the Katz/Vlachakis memo until November 12, 1985. I simply find here that the "November 12" memo was not prepared as a response to Menziuso's.
Shortly after Menziuso sent her memo to Hanos, he called her and arranged a meeting for November 21, 1985. Menziuso, Hanos, Katz, Vlachakis and Yvonne Harris, Menziuso's shop steward, attended the meeting. Hanos stated that he wanted to straighten the matter out. He said that no one was out to get Menziuso and that he was afraid that friction would develop and that Menziuso might become alienated. Vlachakis stated that Menziuso had already become alienated. She was referring to an incident that occurred in her office involving Menziuso and Hope Lewis. Vlachakis had been talking to Lewis when Menziuso entered the office. Menziuso complained to Lewis that she had forgotten to list some information on a financial aid document. Lewis said, "So what? I made a mistake." Menziuso then apparently drew a circle on a pad of paper and said something like, "You all get a piece of the pie. I want my piece of the pie." Menziuso banged the pad on Vlachakis' desk and raised her voice.
Another topic that was discussed at the November 21 meeting was Menziuso's recently acquired habit of writing short, critical memos to other financial aid staff, citing their failures to list certain information on financial aid documents. Menziuso had previously simply made the corrections without circulating the files with memos about the omissions. The posting omissions were not critical and were routinely corrected in a reconciliation process. The financial aid staff found Menziuso's memos to be annoying and disruptive.
During the meeting Menziuso took extensive notes of what was said. Several times she interrupted a speaker to ask him or her to slow down or repeat a statement. Hanos also told Menziuso that he would deny a grievance about the denial of an upgrade unless Menziuso could point to job duties that exceeded those of the Range 15 title.
Sometime in mid-November, Menziuso talked to the Dean of the University about her request for reclassification. Menziuso testified that the conversation was quite friendly. The Dean apparently told Vlachakis that he had met with Menziuso but did not discuss the particulars of the meeting. On the same day Menziuso spoke with Vlachakis and asked her why everyone else in the office had been promoted. Vlachakis told her that she was not responsible for promotions. Menziuso testified she responded, "What goes around comes around," and Vlachakis retorted, "just wait and see what happens to you." Vlachakis denies making the statement. I credit her testimony. It was the more candid and forthright.
On November 26, 1985, Menziuso filed a grievance about the refusal to reclassify her title. The grievance was denied on December 3, 1985 by Vlachakis because it failed to specify the contract article alleged to be violated.
On December 2, 1985, Menziuso filed the following grievance:
The responsibility of analyzing student's financial aid files and recording necessary data onto the History Spreadsheets, which I was definitely assigned to by my supervisor and which I have performed for over one (1) year
now and which I performed with extreme accuracy, otherwise my "outstanding" evaluation would have stated differently, has suddenly become extremely difficult to continue, due to the confused state of the files.
I suspect this is a deliberate attempt to harass me into giving up this responsibility, resigning or discrediting the entire one (1) year that I have been doing this job.
I expect complete and full compensation which is justified.
[CP-7]
Menziuso claims that the preparation of spread sheets is an example of a duty that exceeds those required of a head clerk. Her predecessor in the title did not prepare them. The preparation of spread sheets involves the posting of financial aid information on a ledger-sheet. Menziuso was told, when hired, that it would be part of her job. Vlachakis denied the grievance on December 3, 1985 because Menziuso had failed to state the contract article alleged to be violated.
The grievance also raises the issue of "the confused state of the files." Menziuso claims that this was one of the forms of harassment that she was faced with after she requested a reclassification. It is unclear whether Menziuso accuses her supervisors or her co-workers for the state of the files. All of the financial aid office staff credibly testified that it has always been difficult to locate files and that it is no more difficult now than it has ever been. The difficulty in locating files stems from the fact that everybody in the office works with them.
At about this time, Katz called Menziuso about a meeting to discuss a new college work study program. Katz asked Menziuso to
attend the meeting. Menziuso said she wanted union representation there. After speaking with Hanos, Katz informed Menziuso that she could not have a union representative at the meeting. Menziuso was adamant about the issue. On December 4, 1985, with the assistance of Hanos, Katz prepared a memo to Menziuso. The memo states:
On Tuesday, December 10, 1985 at 9:30 a.m., I will be meeting with Helen and you in the Financial Aid Office to review and reconcile the College Work-Study Program expenditure summary prepared by the Grants Department.
Your request to have a union representative present is inappropriate. This meeting does not involve any personal issues.
If you fail to attend you will be suspended for three (3) days without pay for insubordination.
[CP-9].
Menziuso prepared this responsive memo:
I have no objection to our meeting, however, I would appreciate knowing why our meetings are not held on a one to one basis. Why I must meet with you together with Helen and no one represent me.
In all my past years of experience, I only had to meet with my immediate supervisor and she/he would relate the requests of her/his supervisor. It appears in our department, it doesn't quite work that way.
If you cannot discuss your work problem directly to Helen who in turn will discuss it with me, then I believe I have the right to have my union representative with me also, due to the misunderstanding of our last meeting as you so declared.
Otherwise, I accept being suspended for three (3) days without pay.
[CP-10].
The meeting was held in mid-December, 1985. The only topic of conversation at the meeting was the work study program. Menziuso attended and was not disciplined.
On December 13, 1985, Vlachakis wrote a memo referring Menziuso to the Employee Assistance Program. Vlachakis wrote that she was concerned about Menziuso's "attitude, emotionalism and over-documentation." She pointed out that use of the EAS was voluntary and confidential.
Menziuso did not seek assistance from the EAS. She did, however, see her family doctor, complaining of chest pains and insomnia. Her doctor diagnosed work-related depression, for which she is receiving treatment.
ANALYSIS
Menziuso claims that the Medical School retaliated against her (harassed her) for requesting an upgrade in title and filing grievances. She also claims that she was unjustly denied union representation at the meeting scheduled by Katz to discuss a new work study program.
In order to prove a violation of 5.4(a)(3), Menziuso must show that she engaged in protected activity, that the University was aware of it and was hostile toward her for it. Tp. of Bridgewater and Bridgewater Publ Works Ass'n, 95 N.J. 235 (l984).
It is undisputed that Menziuso aggressively pursued a title upgrade and, when unsuccessful, filed a related grievance. Katz, Hanos and Vlachakis were obviously aware of this. They were also aware of her grievance about the difficulty in working with financial aid files.
Menziuoso alleges that the University's hostility toward her exercise of protected rights is shown by its refusal to upgrade her title, certain claimed inaccuracies in memos, the (allegedly deliberate) disarray of financial aid files, the letter advising her to attend the work study meeting on penalty of suspension, and the referral to the employee advisory service.
I disagree and conclude that Menziuso has failed to demonstrate a prima facie violation under the Bridgewater standard. The preponderance of the evidence reveals that the actions of her supervisors were not intended to harass, coerce, discriminate or interfere with her exercise of protected rights. The evidence shows that the Medical School's actions were directed at the problems which arose as a result of Menziuso's conduct on the job and her difficulty in getting along with her co-workers.
Menziuso was an exemplary employee during her first year of employment. Vlachakis acknowledged this fact in her performance evaluation. Although she was given her increment, Menziuso wanted more money in recognition of her outstanding performance. She sought the money in the form of a title upgrade. The University considered the request but did not feel that the title should be upgraded. There is nothing in the record to suggest that this decision was based on anything but legitimate business reasons. Katz acknowledged that Menziuso was performing duties beyond those called for by her title, but those duties were unnecessary and she was told to stop performing them. This does not constitute proof of hostility.
Nor does the "November 6" memo from Katz and Vlachakis. The memo contains no threat. The claimed inaccuracies are insubstantial. I perceive no attempt to distort or conceal any communication at the November 6, 1985 meeting.
I also find no evidence of hostility in any communication at the November 21 meeting. Hanos told Menziuso that he wanted to straighten things out and avoid friction. He did not want Menziuso to become alienated. They discussed some of the problems that Menziuso was having on the job. She was told that she was performing unnecessary tasks and was not getting along well with office staff. The episode with Vlachakis and Lewis is an example. She had also been writing those memos to her co-workers in what appears to be an attempt to underscore what Menziuso perceived as their inability to properly perform their jobs.
By this time Menziuso became distrustful of her supervisors. She demanded that all correspondence be written. She took excessive notes, disrupting the November 21, 1985 meeting. When Katz asked her to attend the college work study meeting, she refused unless a union representative would be present. She had no right to union representation at that meeting. Its purpose was explained to her and was not disciplinary or investigatory. By any objective standard, she had no reason to fear that discipline may result by her attendance at the meeting. The memo informed her that her failure to attend the meeting would result in discipline posed no threat to her exercise of protected rights. Compare East Brunswick Bd. of Ed., 5 NJPER 398 ( & 10206 1979).
Menziuso's claim that she was being harassed by the removal of files is unconvincing. First, it is unclear whether Menziuso is accusing her co-workers or her supervisors for making her work more difficult. Second, the entire office staff testified that it has always been difficult to locate files because everyone works with them and that it is no more difficult now than it has ever been. I have credited their testimony.
Finally, Menziuso cites the referral to EAS as an attempt to harass her. I find to the contrary. I believe, based on what transpired between Menziuso and the office staff and the manner in which Menziuso reacted to her supervisors, that Hanos, Katz and Vlachakis felt that Menziuso might benefit from the assistance of the EAS. The fact that Menziuso's own doctor told her that she was suffering from work-related depression lends credence to the referral.
I conclude that Menziuso has failed to prove that the Medical School was hostile toward her exercise of protected activity. I recommend that the Complaint be dismissed. 3/
Richard C. Gwin
Hearing Examiner
Dated: November 17, 1986
Trenton, New Jersey
3/ Menziuso presented no proofs relating to a section 5.4(a)(7) violation. ***** End of HE 87-34 ***** |