P.E.R.C. No. 2001-4, Union City

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of COUNTY OF UNION, Respondent, -and- Docket No. CI-H-96-70 JO-ANNE JOBECK, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, DeMaria Ellis & Bauch, attorneys ¶

(Kathryn V. Hatfield, of counsel) ¶

For the Charging Party, Krenkel & Monaghan, attorneys ¶

(David A. Krenkel, of counsel) ¶

DECISION ¶

On May 14 and July 14, 1996, Jo-Anne Jobeck filed an unfair practice charge and amendment against the County of Union. 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) and (3), 1/ when County officials harassed her in retaliation for her organizing on behalf of the United Electrical Workers Union of America. Jobeck also contends ¶

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." ¶

that she was unfairly denied the opportunity to work overtime, was wrongfully suspended for three days, and has had problems with the calculation of her pay. ¶

On October 8, 1996, a Complaint and Notice of Hearing issued. On June 12, 1997, the County filed an Answer denying any wrongdoing. By way of affirmative defenses, the County asserts that it had just cause to discipline Jobeck for absenteeism, tardiness, insubordination, failure to perform her duties, and neglect of duty. ¶

On July 8, 1997 and June 9, 1998, Hearing Examiner Stuart Reichman conducted a hearing. The parties examined witnesses and introduced exhibits. They waived oral argument but filed post-hearing briefs by March 2, 1999. ¶

On May 8, 2000, the Hearing Examiner recommended dismissing the Complaint. H.E. No. 2000-10, 26 NJPER 260 (¶31102 2000). He found that the employer was not hostile toward Jobeck's protected activity and that it did not retaliate against her for such activity. ¶

On May 22, 2000, Jobeck filed exceptions. She claims that the Hearing Examiner erred in finding that her record was not unblemished prior to her union involvement; in failing to find that she did not fill out a new leave form for the day she attended a PERC representation conference; and in finding that her testimony should not be credited because she did not disclose that she had made an inappropriate statement to John Tuite, the ¶

Director of the Division of Information Systems and Telecommunications. Jobeck argues that she presented substantial and credible evidence which demonstrated that she was retaliated against or disciplined because of her protected activities. ¶

On May 26, 2000, the County filed an answering brief. It asserts that Jobeck was issued a reprimand for excessive absenteeism and tardiness almost a year before her union involvement; there is no basis to reject the Hearing Examiner's finding that Jobeck completed a new leave form; and Jobeck never testified on direct examination that she had made an inappropriate remark to Tuite. ¶

We have reviewed the record. We adopt and incorporate the Hearing Examiner's findings of fact (H.E. at 3-26) with the modifications addressed below. ¶

We specifically adopt the Hearing Examiner's statement that Jobeck received a reprimand in March 1994. The document is in the record. Whether or not there was cause for the reprimand is not crucial to the finding that the reprimand issued prior to Jobeck's engaging in protected activity. ¶

We modify finding 11 to indicate that Jobeck may not have completed a new leave form. DeCuollo may have completed the form with Jobeck's consent (2T102). This modification, however, has no bearing on our overall findings or conclusions. DeCuollo first suggested to Jobeck that she could use a family sick day rather than a personal day to visit her sick father and later told Jobeck that she had to change it back to a personal day because she had gone to a PERC proceeding instead. We infer no animus from the interaction and do not discredit DeCuollo's testimony. She ultimately testified that Jobeck did not sign the second form. ¶

Finally, we modify finding 12 concerning the assessment of Jobeck's credibility. We do not rely on Jobeck's failure to testify on direct examination about a reprimand she had received. Jobeck was not asked about the reprimand on direct examination and we see no reason why her counsel should have asked her at that time about the earlier reprimand. Jobeck did answer questions about the reprimand on cross-examination and rebuttal. Nevertheless, we still find no basis for finding that DeCuollo constantly harassed Jobeck in retaliation for Jobeck's protected activity. There was no evidence of hostility to protected activity presented, no motive for such hostility, and no corroboration of Jobeck's testimony about DeCuollo's alleged harassment. ¶

Under In re Tp. of Bridgewater, 95 N.J . 235 (1984), 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 County Director of Administrative Services asked Tuite, Jobeck's supervisor, whether Jobeck was supposed to be at the PERC conference. Tuite then checked with DeCuollo who told him that Jobeck had taken a family sick day to see her sick father. That conversation led to the need to change Jobeck's leave request to a personal day. We infer no animus from these events. ¶

We also have no basis to disturb the Hearing Examiner's determination to credit DeCuollo's testimony that she did not harass Jobeck. The Hearing Examiner based his determination on a number of factors. Jobeck had no corroborating witness; DeCuollo had very little daily contact with Jobeck; DeCuollo was a credible witness; and Jobeck failed to disclose that she had been disciplined for making an inappropriate comment to Tuite. Even discounting the failure to disclose, who have no basis to credit Jobeck over DeCuollo and the charging party has the burden of proving her allegations by a preponderance of the evidence. N.J.S.A. 34:13A-5.3c; Bridgewater. She has not done so. ¶

Under all these circumstances, we adopt the Hearing Examiner's recommendation to dismiss the allegations in the Complaint concerning the alleged harassment and suspension. In the absence of exceptions, we also accept the Hearing Examiner's recommendation to dismiss the allegations concerning overtime and pay calculations. ¶

OrderORDER ¶

The Complaint is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

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

DATED: July 20, 2000 ¶

Trenton, New Jersey ¶

ISSUED: July 21, 2000 ¶