P.E.R.C. No. 2000-88, Warren Cty Pros

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of WARREN COUNTY PROSECUTOR'S OFFICE, : : Respondent, : : -and- : PERC Docket No. CO-H-96-41 : COMMUNICATION WORKERS OF AMERICA, : AFL-CIO, LOCAL 1032, : : Charging Party. : : : : WARREN COUNTY PROSECUTOR'S OFFICE, : : Respondent, : : -and- : OAL Docket No. CSV 9007-96 : KATHERINE BERGMANN, : : Appellant, : ¶

AppearancesAppearances: ¶

For the Respondent, David A. Wallace, County Counsel ¶

For the Charging Party-Appellant, Weissman & Mintz, attorneys (James M. Cooney, of counsel) ¶

DECISION ¶

On October 3, 1995, the Communications Workers of America, AFL-CIO, Local 1032 filed an unfair practice charge against the Warren County Prosecutor's Office. The charge alleges that the Prosecutor violated 5.4a(1) and (3)1/ of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq ., when he terminated Katherine Bergmann, a senior clerk stenographer, allegedly in retaliation for her activity as a member of CWA's negotiations team. 2/ ¶

The Prosecutor filed an Answer. He denied that Bergmann's termination was related to her CWA activities. ¶

Bergmann also appealed her termination to the Merit System Board (MSB). Her appeal alleged that the Prosecutor violated N.J.S.A. 11A:2-24 and N.J.A.C . 4A:2-5.1 by terminating her in retaliation for her complaints to the Department of Personnel (DOP) that the Prosecutor had violated Civil Service law by making her a senior clerk stenographer on a temporary basis and granting leaves of absence to the secretary with whom she switched jobs. The Prosecutor responded that he did not learn of these complaints until five months after her termination. ¶

The unfair practice charge and the MSB appeal were consolidated for a hearing before Administrative Law Judge Marylouise Lucchi-McCloud. The initial decision was to be ¶

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. (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. ¶

2/ The charge contained other allegations no longer in dispute. ¶

forwarded to both agencies, with the Commission first determining whether an unfair practice had occurred and the MSB then determining whether the Civil Service Act had been violated. ¶

Hearings were held on September 1, 2, and 29, 1998. The parties introduced exhibits, examined witnesses, and filed post-hearing briefs. When it filed its post-hearing brief, CWA also filed a motion with the ALJ to amend its charge to allege that Bergmann was terminated for whistleblowing in connection with her Civil Service status. ¶

Judge Lucchi-McCloud retired on disability before she could issue a decision. The case was reassigned to ALJ Thomas R. Vena. Neither party asked that the hearing be reopened. ¶

On October 12, 1999, Judge Vena issued his decision. He found that the Prosecutor was not hostile to Bergmann's CWA activity and that her termination was not in retaliation for such activity. He therefore recommended dismissing the unfair practice charge. Judge Vena did not consider the motion to amend the charge. He also concluded that her termination did not violate Civil Service laws because she had held an interim appointment rather than a permanent position. ¶

CWA filed exceptions contesting the recommended dismissal of the charge and incorporating its post-hearing brief. It asserts that the ALJ did not make adequate findings of fact and conclusions of law and the record demonstrates that Bergmann was unlawfully terminated under Civil Service law and our Act for whistleblowing and her CWA activity. ¶

The Prosecutor's response asserts that the exceptions do not specify the facts in question and the record citations relied upon; the alleged whistleblowing is irrelevant because the ALJ did not grant CWA's motion to amend its charge to make such allegations, the ALJ did not consider those allegations, and CWA did not except to the ALJ's not granting its motion; and the Prosecutor was not hostile to Bergmann's CWA activity. ¶

CWA submitted a reply letter without permission. N.J.A.C . 19:14-7.3(g). The Prosecutor objected. We decline to consider the reply letter. ¶

We have reviewed the record. We adopt the ALJ's findings of fact (slip op. at pp 3-4) concerning the charge, with one correction and some additions. 3/ ¶

CWA did not hold the representation election; the Commission conducted the election and certified CWA as the majority representative based on its results. We add these facts. The collective negotiations agreement between CWA's predecessor and the Prosecutor excluded temporary employees from the negotiations unit (2T8; R-3). The Prosecutor challenged Bergmann's right to vote in the CWA election because he considered her to be a temporary employee. This objection was inconsistent ¶

Note3/ The exceptions violate N.J.A.C. 19:14-7.3(b), but we must review the record on our own. In re Maywood Bd. of Ed., 168 N.J. Super . 45 (App. Div. 1979), certif. den. 81 N.J . 292 (1979). CWA's post-hearing brief contains transcript citations and is incorporated in the exceptions. ¶

with a County personnel document (P-12) listing her as a provisional employee, but it was explained that the County computer system could not record her as temporary without changing her hire date for purposes of calculating benefits (2T67-68; J-4). The Prosecutor had considered her position to be a temporary one before the election and before Bergmann contacted DOP about her status (R-1). Bergmann was designated as a member of CWA's negotiations team, but was terminated before any negotiations sessions (1T61). CWA had employees submit duties questionnaires to the Prosecutor collectively (P-18; P-21), but he insisted that they be reviewed individually because job titles and duties were not subject to negotiations under the prior contract (P-19; P-23). That issue was then dropped (2T143). When CWA grieved Bergmann's termination, the Prosecutor responded that she was not a permanent or provisional employee represented by CWA (P-17). The Prosecutor never evinced hostility towards Bergmann as a union representative or towards other employees serving as union representatives (2T60-2T62). ¶

Based on our review of the record and our findings of fact, we adopt the ALJ's conclusion that Bergmann's CWA activity was not a motivating factor in her termination. The Prosecutor's objections to Bergmann's voting and to dealing collectively with the duties questionnaires were not unfounded or indicative of hostility. This record demonstrates that the Prosecutor was not hostile to the negotiations process or to Bergmann's activities as a shop steward or negotiations team member. ¶

The unfair practice charge cited Bergmann's CWA activity as the reason for her termination. CWA now asks us to find that the Prosecutor terminated her for complaining to DOP about her temporary position and that such a motivation violated the Employer-Employee Relations Act as well as the Civil Service law. We decline to consider such a finding. No motion to amend the charge was made before the hearing ended and no exception was raised to the ALJ's tacit denial of the post-hearing motion. The whistleblowing issue does not involve collective activity and is limited to a dispute about an individual employee's job status under Civil Service requirements. The MSB is in the best position to adjudicate the whistleblower claim and can do so once we transfer the case to it. ¶

OrderORDER ¶

The Complaint is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

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

DATED: April 27, 2000 ¶

Trenton, New Jersey ¶

ISSUED: April 28, 2000 ¶