P.E.R.C. No. 2001-38, Rutgers

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of RUTGERS, THE STATE UNIVERSITY, Respondent, -and- Docket No. CO-H-99-299 AFSCME COUNCIL 52, LOCAL 888, AFL-CIO, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Office of University Counsel (Wayne Richardson, of counsel) ¶

For the Charging Party, Szaferman, Lakind, Blumstein, Watters & Blader, P.C. (Stuart A. Tucker, of counsel) ¶

DECISION ¶

On March 18, 1999, AFSCME Council 52, Local 888, AFL-CIO filed an unfair practice charge against Rutgers, the State University. The charge alleges that the employer violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq ., specifically 5.4a(1), (2), (3) and (4),1/ by retaliating against ¶

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. ¶

Footnote Continued on Next Page ¶

union member Diane Walton for exercising her right to use the negotiated grievance procedure. It asserts in particular that Walton prevailed on a grievance, was given a promotional position subject to a 90-day trial period, and was then demoted after only three days in the promotional period, in retaliation for having filed the initial grievance. ¶

On June 23, 1999, a Complaint and Notice of Hearing issued. On August 3, the employer filed an Answer. It asserts that it removed Walton from a promotional position of custodial group leader because she was unable to perform the duties of the higher title. It denies it did so because she filed a grievance seeking that position. ¶

On November 18, 1999, Hearing Examiner Regina A. Muccifori conducted a hearing. The parties examined witnesses, introduced exhibits, and filed post-hearing briefs. ¶

On August 18, 2000, the Hearing Examiner recommended dismissing the Complaint. H.E. No. 2001-6, 26 NJPER 442 (¶31175 2000). She found that the University was not hostile to Walton for using the grievance procedure and that it had a legitimate business justification for demoting her. ¶

Note1/ Footnote Continued From Previous Page ¶

(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 October 3, 2000, after an extension of time, AFSCME filed exceptions. It argues that the decision to demote Walton, after only three days as a custodial group leader, demonstrates that the University was hostile toward her for filing a grievance. It further argues that the employer's asserted reasons for demoting Walton from the position were pretextual. ¶

On October 30, 2000, after an extension of time, Rutgers filed an answering brief. It argues that AFSCME's exceptions do not comply with our rules and that the recommendation to dismiss the Complaint should be adopted. ¶

We have reviewed the record. In the absence of any specific exceptions to the Hearing Examiner's findings of fact, see In re Maywood Bd. of Ed ., we adopt and incorporate those findings (H.E. at 3-19). ¶

The Complaint alleges that the employer retaliated against Walton for exercising her right to file a grievance under the parties' collective negotiations agreement. Such allegations are governed by the standards established in In re Bridgewater Tp., 95 N.J. 235 (1984). ¶

Under Bridgewater , no violation will be found unless the charging party has proved, by a preponderance of the evidence on the entire record, that protected conduct was a substantial or motivating factor in the adverse action. This may be done by direct evidence or by circumstantial evidence showing that the employee engaged in protected activity, the employer knew of this activity and the employer was hostile toward the exercise of the protected rights. Id. at 246. ¶

If the employer did not present any evidence of a motive not illegal under our Act or if its explanation has been rejected as pretextual, there is sufficient basis for finding a violation without further analysis. Sometimes, however, the record demonstrates that both motives unlawful under our Act and other motives contributed to a personnel action. In these dual motive cases, the employer will not have violated the Act if it can prove, by a preponderance of the evidence on the entire record, that the adverse action would have taken place absent the protected conduct. Id . at 242. This affirmative defense, however, need not be considered unless the charging party has proved, on the record as a whole, that anti-union animus was a motivating or substantial reason for the personnel action. Conflicting proofs concerning the employer's motives are for us to resolve. ¶

The first two parts of the three-part test have been met. Walton filed a grievance, which is protected activity under the Act. The employer knew of the grievance and, in fact, it agreed to award Walton the promotion at step three of the grievance procedure. The remaining question is whether the employer was hostile toward Walton for pursuing that grievance. ¶

AFSCME argues that hostility can be inferred from three facts: (1) Walton's supervisor greeted Walton with hostility and did not offer her any instructions on her new position; (2) the supervisor refused to allow another custodian to help Walton lift a couch; and (3) the employer removed Walton from the promotional position after only three days. We now review the pertinent facts. ¶

Diane Walton submitted a bid for a vacant custodian group leader position. After interviewing Walton and another custodian with less seniority, Carolyn Harris, who was a custodial foreperson and Walton's supervisor, recommended the junior custodian for the promotion. Walton then filed a grievance under a contractual provision requiring that promotions be given to the senior employee, unless there is an appreciable difference in ability or the senior employee does not have the ability to perform the particular job. After a step three grievance meeting, the department reversed its position and awarded the promotion to Walton, subject to a 90-day probationary period. ¶

In its step three grievance response, the employer's employee relations specialist specified that Walton should be provided with a detailed job description, advised of the department's expectations for acceptable performance standards, given/explained job specific "do's and don'ts," and provided with the opportunities to demonstrate that she has the ability to perform the key job duties. Once on the job, Walton's supervisor was to provide her with accurate and regular feedback. If she was not doing well, the supervisor would have to clearly communicate this to her orally and in writing. Lastly, the department would evaluate her performance to determine if she should be retained in the job or sent back to her former title. ¶

When Walton reported to Harris's office on her first day, she awaited instructions. Another group leader gave Walton some keys and told her to come to the group leader office to wait for Harris. Harris gave Walton a safety belt, a group leader booklet, and a detailed job description. She told Walton to read the information and that she would return later. Walton was not given the keys to the supply cabinet. Those keys were held by the employee who had been initially given the promotion. Walton was not advised of any performance standards or of what she should or should not do. ¶

Because of an immediate need to shampoo carpets while the students were on break, Harris did not assign Walton any duties the first day. Since Walton had not shampooed carpets before, Harris simply wanted Walton to observe her shampooing carpets. Harris, however, did not explain that to Walton. ¶

When Walton saw Harris with the rug shampooer, she followed Harris. Harris did not instruct her to do so. They went to the supply closet and Walton picked up some supplies, but she still did not know where she was going. ¶

When Walton and Harris arrived at the bottom of a staircase, Harris placed the 110 pound shampooer next to the stairs. Walton guessed that she was supposed to lift the machine up the stairs. Harris did not speak to her. Although Harris does not consider herself a "big talker," she did tell Walton how to work the shampooer (finding 8). Walton testified that she watched Harris shampoo a couple of rugs and then Harris let Walton try the machine (T49-50). Harris was asked whether she went through two days without speaking to Walton. She responded that she "told her how to run the machine and stuff like that (T103)." ¶

When Walton and Harris began to carry the shampooer up the stairs, Walton lifted the machine with one hand and held the railing with the other. The machine hit the stairs, which could have damaged the machine. Harris did not try to change Walton's method of carrying the machine. Harris was asked at hearing: ¶

Q Is that the proper way for the machine to move up the stairs? ¶

A No. ¶

Q Noticing that it was not the proper way for it to be moving up the stairs, and noticing that she was moving up with one hand, and given your responsibilities to train her, did you suggest to her that she use two hands? ¶

A Well, I ask her if she could manage to carry the machine upstairs and she said yes. ¶

Q I see. And you let this go on for two days without trying to change anything? ¶

A You can't change people carrying stuff sometime. [T121-T122] ¶

A University Housing Department periodical entitled "Housing Headlines" contained a graphic of employees lifting. It states, "If it feels too heavy, get help." It was included in the newsletter to remind employees how to perform their job. ¶

When Harris and Walton had to move a three-seat sofa, Harris lifted one end and asked Walton to lift the other. When ¶

Walton tried to lift the sofa, it felt too heavy for her. A fellow custodian asked if he could help. Harris refused to allow it, responding that it was Walton's job. Harris was asked at hearing: ¶

Q Is there a proper way that you were trained in how to lift things ¶

A Yes, we bend down and we pick up, with our knees, and pick up. ¶

Q That is part of the training program that everyone goes through that has to lift at the University? ¶

A Yes. ¶

Q Was Ms. Walton doing things that way? ¶

A I don't know. I wasn't paying much mind. If she was lifting on Bush [Busch campus], she should have been trained already. [T122] ¶

Harris was later asked: ¶

Q And one of the reasons that you said she couldn't do the job was because she couldn't lift this furniture, correct? ¶

A Yes. ¶

Q And you're testifying that you didn't notice how she lifted it? ¶

A We bend down the same time. We pick up at the same time. ¶

Q Do you see your job in any way to train Ms. Walton or other group leaders who come under your supervision? ¶

A Repeat that again. ¶

Q Do you see as any part of your responsibility to train group leaders who come under your supervision? ¶

A Yes. ¶

Q But the manner in which Ms. Walton lifted or as you put it, didn't lift, you saw no responsibility to see if she was doing it correctly? ¶

A Well, both of us went down at the same time, as we came up at the same time. ¶

Q Would you answer my question? Would you answer my question please. You saw no responsibility to observe how she lifted if, in fact, she couldn't get up, get the furniture up? ¶

A No. [T123-T124] ¶

The second day, Harris and Walton continued to carry the shampooer up flights of stairs. Walton continued to use one hand and Harris did not suggest that Walton use both hands to carry it. As Walton was carrying the machine, she strained her arm, but she kept working. She iced it at lunch, but it started swelling. She called her shop steward and did not go directly to Harris because she felt intimidated by her. ¶

Walton was treated by the University's health services. The doctor indicated that Walton was unfit to fully perform her duties for the remainder of the day, and that she should be examined the next morning before returning to work. Later that day, Harris spoke to the Assistant Director of Housing for Administration. She reported that Walton had hurt herself and that she thought Walton could be dangerous to work with because she had trouble lifting. The Assistant Director then spoke to members of the employer's Office of Employee Relations. A decision was made to return Walton to her prior position. ¶

The essential facts are not in dispute. Our task is to determine whether an inference should be drawn that Harris's conduct evidences hostility to Walton's right to grieve the initial promotion denial. We cannot put ourselves into Harris's mind. We can only judge her by her actions. And we believe those actions show hostility to her filing this grievance and shift the burden to the employer to prove that it would have demoted Walton, even absent her filing the grievance. ¶

We accept the fact that Harris is not a "big talker." But she said practically nothing to Walton, the person she did not recommend for the job and the person who only got the job because she had filed a grievance. Harris saw Walton carrying the shampooer in a way that could injure her, and in fact did injure her, and in a way that could damage the machine. Yet she said nothing. She did not suggest a better or safer way to carry it. She instead let Walton fail. She knew that Walton was having trouble lifting the sofa, but she did not bother to see if she was lifting correctly, and she would not let another custodian help, even though a University publication urges employees to do so. It is possible that Harris is simply a poor supervisor who would not give any probationary employee instructions or guidance. But the record does not include any information about how she supervises others. Instead we are presented with a scenario where a successful grievant was promised instruction, feedback and an opportunity to demonstrate that she can perform the duties of the promotional position. Instead, she was basically ignored and then considered a failure after just two days. Given the University's commitment and given Harris's failure to live up to that commitment, we believe it proper to draw the inference that Harris was hostile to Walton because she filed a grievance and ultimately received the promotional position that Harris had recommended she not receive. ¶

Our conclusion on this part of the Bridgewater test shifts the burden to the employer to prove, by a preponderance of the evidence, that it would have demoted Walton, even absent her protected activity. The Hearing Examiner found that, even assuming hostility, the employer had a legitimate business reason for its action. She based her conclusion in part on her finding that Walton could not perform the lifting required of a custodian group leader. Perhaps that is so, but we are not convinced, given the lack of instruction on proper lifting techniques. On this record, we do not believe that the University proved that it would have treated another employee the same had that employee not received the position through the grievance procedure. The University did not present any evidence about how similarly situated employees have been treated; or any evidence that other employees were given just two days without instruction before they were removed from a trial period. Walton's treatment was inconsistent with the University's commitments outlined in its Step 3 grievance response. ¶

Under these circumstances, we will order the employer to place Walton back on a trial period comparable to the trial period other employees would receive. We will not award back pay at this time because we cannot assume that Walton would have successfully completed the trial period. Should Walton complete her trial period and be given a permanent promotion, she will be entitled to backpay retroactive to January 4, 1999, plus interest. The University retains the right to return Walton to her former position should she be unable to meet its standards, but she must be given the same opportunity to succeed that any other employee would receive. ¶

In the absence of exceptions, we dismiss the 5.4a(2) and (4) allegations. ¶

OrderORDER ¶

Rutgers, the State University 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 retaliating against Diane Walton for exercising her right to use the negotiated grievance procedure. ¶

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 Diane Walton for exercising her right to use the negotiated grievance procedure. ¶

B. Take this action: ¶

1. Place Walton back on a trial period for custodial group leader comparable to the trial period other employees would normally receive. ¶

2. If Walton passes her trial period, provide backpay equal to the difference between her regular salary and the group leader salary, retroactive to January 4, 1999, plus interest pursuant to R. 4:42.11. ¶

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. Within twenty (20) days of receipt of this decision, notify the Chair of the Commission of the 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, Madonna, McGlynn, Muscato, Ricci and Sandman voted in favor of this decision. None opposed. ¶

DATED: January 25, 2001 ¶

Trenton, New Jersey ¶

ISSUED: January 26, 2001 ¶