P.E.R.C. No. 2000-82, Hillsborough Tp

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of TOWNSHIP OF HILLSBOROUGH, Respondent, -and- Docket No. CO-H-98-231 HILLSBOROUGH POLICEMEN'S BENEVOLENT ASSOCIATION, LOCAL NO. 205, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Frank N. Yurasko, attorney ¶

For the Charging Party, S.M. Bosco Associates, consultants ¶

(Simon M. Bosco, Ed.D., consultant) ¶

DECISION ¶

On December 23, 1997 and January 21, 1998, Hillsborough Policemen's Benevolent Association, Local No. 205 filed an unfair practice charge and amended charge against the Township of Hillsborough. The PBA alleges that the Township violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq ., specifically 5.4a(1), (2), (3) and (5),1/ when, as part of an ¶

Note1/ These provisions 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. (2) Dominating or interfering with the formation, existence or administration of any employee organization. (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) ¶

Footnote Continued on Next Page ¶

internal affairs probe focused on PBA President Trevor Oldenburg, it questioned PBA members and asked them to provide a written account of certain events at a PBA meeting; warned them not to discuss or give their statements to the PBA; removed Oldenburg from a corporal position; did not allow him representation during an investigatory interview; and initiated disciplinary action against him in retaliation for his activities as PBA president, primarily for a letter he wrote in that capacity. ¶

On July 28, 1998, a Complaint and Notice of Hearing issued.2/ On August 10, 1998, the Township filed a detailed Answer setting forth its reasons for the challenged actions and denying that its conduct violated the Act. ¶

On February 25, May 3 and 5, 1999, Hearing Examiner Arnold H. Zudick conducted a hearing. The parties examined witnesses, introduced exhibits, argued orally, and filed post-hearing briefs. 3/ ¶

Note1/ Footnote Continued From Previous Page ¶

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." ¶

2/ The Complaint did not include an allegation that the employer violated the Act because it did not give Oldenburg enough time to find a representative to accompany him to an investigatory interview. See Hillsborough Tp., D.U.P. No. 98-34, 24 NJPER 253 (¶29120 1998). ¶

Note3/ Before the hearing began and again at the commencement of testimony, the PBA moved for summary judgment. The motions were referred to and denied by the Hearing Examiner. ¶

On October 26, 1999, the Hearing Examiner issued a report and recommended decision. H.E. No. 2000-2, 26 NJPER 1 (¶31000 1999). He concluded that the Township violated N.J.S.A . 34:13A-5.4a(1) and (3) by determining that Oldenburg had violated departmental rules and should be suspended because of a letter he sent as PBA president. However, the Hearing Examiner found that the Township did not violate the Act by conducting an internal affairs investigation into the source of the letter; restricting employees from discussing their statements with the PBA during the investigation; removing Oldenburg from his corporal position; or using the internal affairs procedure it did. ¶

The Hearing Examiner recommended that the Township be ordered to cease and desist from its violations; withdraw disciplinary charges sustained after a hearing, and expunge references to the sustained charges from his record; withdraw any suspension imposed resulting from the charges; and make Oldenburg whole for any wages and benefits lost during any suspension. ¶

On November 9, 1999, the Township filed exceptions. On November 17, the PBA filed a response asserting that the exceptions should be dismissed because they do not conform to N.J.A.C . 19:14-7.3(b), do not contain citations, and repeat arguments made to the Hearing Examiner. The PBA "cross-moved" for approval and enforcement of H.E. No. 2000-2. ¶

The exceptions do not challenge any factual findings, but instead question whether the Hearing Examiner properly applied case law. We find no ground to reject the exceptions based upon their form or brevity. ¶

We adopt and incorporate the Hearing Examiner's findings of fact. We summarize the relevant facts here. ¶

On Sunday, October 12, 1997, Officer Stephen Gonzalez investigated a motor vehicle accident in a supermarket parking lot and issued a summons to the mother of Joseph Yanicak, a police officer and PBA member in Montgomery Township, a municipality which borders Hillsborough. ¶

Three times that same day, Yanicak telephoned Gonzalez about the accident. The record indicates that Yanicak was irate about his mother having been ticketed and threatened to give summonses to Gonzalez' relatives. Yanicak also telephoned a Hillsborough police sergeant about the incident. ¶

On October 20, 1997, Hillsborough Police Sergeant Paul Kaminsky had a chance meeting with Yanicak who threatened that his PBA (Montgomery) would issue a ticket to Hillsborough PBA family members and officers for every dollar his mother was fined. Kaminsky cautioned Yanicak not to start a border war over the incident. Kaminsky also told Yanicak that many Hillsborough members did not support what Gonzalez had done. ¶

At the PBA's October 21, 1997 meeting, many members were upset with what they thought was the manner in which Gonzalez handled the situation and felt that the incident made the entire local look bad. Derogatory comments and descriptions of Gonzalez were made. A motion to send a letter of apology to the Montgomery PBA was approved. Officers then shouted out statements they wanted Oldenburg to put in the letter. ¶

Oldenburg drafted the letter. He tried to reflect the PBA's sentiments but to tone down the members' characterizations of Gonzalez. ¶

After receiving a copy of the letter, Gonzalez gave Chief Robert Gazaway a memorandum describing the incident and an internal affairs complaint he was making against Oldenburg alleging official misconduct. Gazaway responded by starting an internal affairs probe based on Gonzalez' complaint. ¶

Interviews of officers and PBA members were conducted over the next several days. Gazaway concluded that Oldenburg had used his own words in the letter. He called Oldenburg into his office and told him he had lost faith and confidence in his ability to perform corporal duties and that he was removing him from those duties. After losing his corporal's rank, Oldenburg stepped down as PBA president. In late November 1997, the captain conducting a departmental investigation recommended to Gazaway that a number of charges be filed against Oldenburg. ¶

On October 2, 1998, a departmental hearing officer upheld two charges against Oldenburg. He found that Oldenburg violated these rules: ¶

5.2.1 - Standard of Conduct. Members and employees shall conduct their private and professional lives in such a manner as to avoid bringing the Department into disrepute. ¶

7.1.6.11 - Conduct unbecoming an employee in the public service. ¶

No recommendation of a disciplinary penalty was made in the decision, but it is undisputed that the Township sought to suspend Oldenburg for as much as 30 days. However, Oldenburg invoked his right to appeal the discipline to the Superior Court, N.J.S.A. 40A:14-147 et seq ., so no penalty had yet been imposed when the record closed. ¶

In the absence of exceptions, we adopt the Hearing Examiner's conclusions that the Township did not violate the Act by initiating an investigation based on Gonzalez's complaint or by removing Oldenburg from his corporal assignment. As the Hearing Examiner found, the investigation was precipitated by Gonzalez's filing an internal affairs complaint against Oldenburg. Departmental rules require investigations of all allegations of misconduct. Under these facts, the Township had a legitimate business justification for initiating the investigation. Similarly, it had a legitimate business justification for removing Oldenburg from his supervisory position of corporal. The Hearing Examiner found that the chief needed to restore order in the Department, repair the chain of command, and place in positions of authority officers in whom he had faith to do the job. We agree that those reasons outweighed any interference with protected rights. ¶

We reject the employer's exception that it did not violate 5.4a(1) or (3) when it disciplined Oldenburg. The ¶

Township does not challenge the findings showing that the majority of the PBA members who attended the October 1997 meeting voted to send the letter of apology and outlined what it should say. The record includes the minutes of the meeting identifying the officers who made and seconded the motion to send the apology. Those officers were not disciplined. While the chief testified that the internal affairs investigation showed that the "words" used in the letter were Oldenburg's, the PBA president's references to Gonzalez were more temperate than descriptions used by other PBA members. While Oldenburg may have also believed that Gonzalez did not handle the incident properly, he did not take it upon himself to send the letter. He did so at the direction of the majority of the members who were present at the meeting. The message was the PBA's, but only the messenger was punished. ¶

We agree with the Hearing Examiner that the filing of disciplinary charges against the PBA president alone had a tendency to interfere with the exercise of protected rights and discriminated against Oldenburg in regard to a term and condition of employment based on his holding union office. Absent his status as PBA president, Oldenburg would not have been singled out for discipline. We conclude that the employer had no operational reason for disciplining only Oldenburg, nor would it have imposed discipline absent his status as PBA president. Even if the contents of the letter are viewed as unprotected, Oldenburg did not take a leadership role in suggesting that the letter be sent or in deciding what its contents would be. He reported to the PBA regular membership meeting about the Yanicak incident and the membership voted to send a letter of apology to the Montgomery PBA. Oldenburg used considerably more temperate language and sent the letter on behalf of the PBA. Under these circumstances, seeking to discipline Oldenburg as an employee violated N.J.S.A. 34:13A-5.4a(1) and (3). Compare Metropolitan Edison Co. v. NLRB, 460 U.S . 693 (1983)(imposing more severe discipline on union officials who did not take leadership role in lawful strike than on other striking employees is inherently destructive of protected rights because it discriminates solely on the basis of union status; disciplining union officials discriminatorily may deter employees from seeking union office); contrast Midwest Precision Castings Co. and Local 160, Leather Goods, Plastics and Novelty Workers Union, AFL-CIO , 244 NLRB No. 63, 102 LRRM 1074 (1979)(permissible to single out for greater discipline a union steward who actively led and directed an unauthorized, illegal work stoppage). ¶

OrderORDER ¶

The Township of Hillsborough is ordered to: ¶

A. Cease and desist from: ¶

1. Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act, particularly by singling out Trevor Oldenburg for discipline based upon his status as PBA president. ¶

2. Discriminating in regard to hire or tenure of employment or any term and condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by the Act, particularly by singling out Trevor Oldenburg for discipline based upon his status as PBA president. ¶

B. Take this action: ¶

1. Withdraw all disciplinary charges imposed against Trevor Oldenburg based on the October 2, 1998 department hearing officer report and expunge them from his record. ¶

2. Lift any suspension imposed on Trevor Oldenburg based on the October 2, 1998 departmental hearing officer report and make Oldenburg whole for any resulting loss of pay, seniority and benefits. ¶

3. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix "A." Copies of such notice shall, after being signed by the Respondent's authorized representative, be posted immediately and 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. ¶

4. Notify the Commission Chair within twenty (20) days of receipt what steps the Respondent has taken to comply with this order. ¶

The remaining allegations in the Complaint are dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners Buchanan, McGlynn, Muscato, Ricci and Sandman voted in favor of this decision. Commissioner Madonna abstained from consideration. None opposed. ¶

DATED: April 27, 2000 ¶

Trenton, New Jersey ¶

ISSUED: April 28, 2000 ¶