P.E.R.C. No. 2001-52, NJ/State (Human Serv)

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of STATE OF NEW JERSEY, (DEPARTMENT OF HUMAN SERVICES), Respondent, -and- Docket No. CO-H-97-47 COMMUNICATIONS WORKERS OF AMERICA, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, John J. Farmer, Jr., Attorney General ¶

(Stephan M. Schwartz, Deputy Attorney General) ¶

For the Charging Party, Weissman & Mintz, attorneys ¶

(Mark A. Rosenbaum, of counsel) ¶

DECISION ¶

On August 9, 1996 and February 19, 1997, the Communications Workers of America filed an unfair practice charge and amended charge against the State of New Jersey (Department of Human Services). The charge alleges that the employer violated 5.4a(1), (2), (3) and (4) of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq.1/ when it reprimanded ¶

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 ¶

Footnote Continued on Next Page ¶

Donald Garlanger, a teacher at Ancora Psychiatric Hospital, for not being in his work area on March 28 and April 16, 1996; for yelling at a supervisor on March 28; and for physically intimidating another supervisor on March 29. CWA alleges that the reprimand was in retaliation for his protected activities as a shop steward. ¶

On May 9, 1997, a Complaint and Notice of Hearing issued. The State's Answer asserted that Garlanger was reprimanded for legitimate business reasons. ¶

On June 1 and 2, and July 13, 1998, Hearing Examiner Susan Wood Osborn conducted a hearing. The parties examined witnesses, introduced exhibits, and filed post-hearing briefs. ¶

On July 20, 2000, the Hearing Examiner recommended that we dismiss the Complaint. H.E. No. 2001-2, 26 NJPER 385 (¶31152 2000). With respect to the incidents on March 28, 1996, the Hearing Examiner concluded that Garlanger was initially engaged in protected activity because he was representing an employee at a Weingarten interview. See NLRB v. Weingarten, Inc., 420 U.S. 251 (1975); UMDNJ and CIR, 144 N.J . 511 (1996). However, she found that the yelling for which he was reprimanded was not protected ¶

Note1/ Footnote Continued From Previous Page ¶

employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this act. (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." ¶

because it occurred in the presence of staff and then patients, after the meeting had ended and after a supervisor had terminated another, impromptu gathering. Therefore, she concluded that basing a reprimand on those comments did not violate the Act. 26 NJPER at 390. ¶

Similarly, she found that, because the Weingarten meeting had ended, Garlanger's absence from his work area was not protected "conduct." Even if it had been, she concluded that he would have been reprimanded anyway because of the section chief's view that a teacher needed permission before leaving a work area. Ibid. ¶

With respect to the March 29 incident, the Hearing Examiner found that Garlanger was engaged in protected conduct when he made a call about union business during a break and that his conduct continued to be protected when, after he observed acting section chief Donna Jo Cohan taking notes about his conversation, he began a heated discussion with her concerning her alleged disregard of Weingarten principles. However, the Hearing Examiner also concluded that Garlanger physically intimidated Cohan and that reprimanding him for that intimidation did not violate the Act. 26 NJPER at 391. As a factor in her analysis of whether Garlanger's conduct was protected, she found that Cohan's note-taking constituted surveillance violating 5.4a(1). Ibid. ¶

Finally, the Hearing Examiner concluded that reprimanding Garlanger for his absence from his work area on April 16 was lawful. He had not engaged in protected activity on that date and even if protected activity had motivated this portion of the reprimand, the State showed that he would have been sanctioned anyway given his supervisor's testimony about inappropriate teacher absences from scheduled classes. 26 NJPER at 391-392.2/ ¶

On August 14, 2000, after an extension of time, CWA filed exceptions. It contends that the Hearing Examiner erred in concluding that Garlanger's statements on March 28 were not protected; finding that Garlanger had intimidated Cohan; and holding that the April 16 reprimand was not retaliatory. It also asks that we remedy the 5.4a(1) violation found by the Hearing Examiner. The State did not file its own exceptions or a response to CWA's exceptions. ¶

Facts ¶

We have reviewed the record. We adopt and incorporate the Hearing Examiner's findings (26 NJPER at 385-389), as supplemented here. We first summarize the events of March 28 and 29, 1996. ¶

At about 8:30 a.m. on March 28, Patricia Smith was speaking with David Fisher, with whom she shared an office. As he sipped coffee, Fisher made an unspecified comment about coffee drinking or coffee drinkers. Smith responded: "Some people can have coffee and cigarettes in the morning while other people have ¶

Note2/ The Hearing Examiner did not discuss CWA's allegations that the State had violated 5.4a(2) and (4). These allegations were not addressed in CWA's post-hearing brief or exceptions. We do not consider them further. ¶

to work in the work shops like slaves." Smith was referring to a counselor who was allegedly prohibited from drinking coffee. ¶

Another employee, Mary Chiari, was in an adjacent cubicle; upon overhearing Smith, she went to Smith's and Fisher's office and shouted at Smith: "What do you mean? What are you talking about"! Smith and Chiari argued briefly and then Chiari ran out to report the incident to Cohan, who was acting as section chief because of chief Beth Dolinski's absence. Cohan gathered Smith, Chiari, and Patricia Davis -- Smith's supervisor -- in her office. Smith asked Fisher, a CWA shop steward, to represent her; he declined because he had witnessed the incident, but told Garlanger, another steward, that Smith needed his help. Garlanger went to the meeting after asking a teaching assistant to watch his student if the student arrived before he returned. He did not ask his supervisor's permission to leave his work area. ¶

Garlanger, Smith, Cohan, Davis and Chiari met in Cohan's office. At Cohan's urging, Chiari and Smith briefly described the "coffee" episode. Davis then spoke about appropriate conduct in the vocational rehabilitation department. Garlanger interrupted to ask if the matter could be resolved informally or at least within the department. Davis replied that such approaches had failed. Garlanger responded that Smith had a constitutional right to free expression and that "this department has problems with minorities." Chiari promptly walked out and Cohan declared that the meeting was over. She did so because she "was not very tolerant of an accusation of the minority issue." Smith and Garlanger left; Cohan and Davis remained for a few minutes; and ¶

Cohan directed Davis to ask Chiari and Smith for written statements. Garlanger accompanied Smith back to her office, both to calm her down and to view the scene of the incident. ¶

Davis also walked back, alone, to Smith's office, because she supervised that area. Sometime between 9:00 and 9:15 a.m., Davis walked into Smith's office, where Smith, Garlanger and Fisher were gathered. Fisher and/or Smith started to recount the incident and Garlanger stated that it was ridiculous that "you want to discipline someone over a cup of coffee." Davis saw that it was 9:15, and responded: "[T]his meeting is over. Get back to work." We add to finding no. 7 that, in 1996, educational programs were scheduled to begin at 9:00 a.m. but often did not start until 9:15 or later, because patients had to pick up their medications and take the shuttle to their classes (1T148-1T149). ¶

Davis then walked out and headed down the hall, followed by Smith and Garlanger. CWA does not dispute the finding, based in part on Davis's testimony, that Garlanger was yelling -- talking loudly and passionately -- about Smith's rights to free speech and representation. Gina Rebilas, an assistant supervisor, stated that she observed Davis walk by with her hands in the air shouting "I can't take it anymore; he's been doing this all day, I can't take it any more." Rebilas observed Smith and Garlanger pass by about fifteen seconds later, and heard Garlanger talking "moderately to loudly" about Smith's right to representation. ¶

Davis went to Cohan's office and reported that Garlanger was following her. Cohan walked out of her office and stood near the rear entrance of Maple Hall, where patients were alighting from a shuttle. Garlanger was talking loudly about freedom of speech; Cohan told him to lower his voice; and Garlanger replied that he had the right to talk as loudly as he pleased. He then walked to his work area. His student arrived soon after. ¶

Later that afternoon, Davis directed Smith to write down her version of the incident. Smith responded with a memorandum asking Davis to be more specific. Cohan then called Smith to her office and Smith asked Garlanger to accompany her. Davis also attended. Garlanger asked that Davis's directive be put in writing. Davis refused and Garlanger and Smith left the meeting. ¶

At around 9:00 a.m. on the next morning (March 29), Cohan and Davis entered Smith's office and told Smith to submit her version of the coffee episode by 10:00 or 11:00 a.m. Smith stated that she wanted to speak with Garlanger first, but Cohan told her not to interrupt his teaching. She also stated that he could not leave his work area. ¶

Smith then went to speak with Liz Scott, the CWA shop steward for clerical unit employees. Scott telephoned Garlanger and informed him of her discussion with Smith and of Smith's discussion with Cohan. The call coincided with a break in Garlanger's teaching schedule so he called the chief executive officer of Ancora to complain about the events of the morning. He did so from an office across the hallway from his class; Cohan observed and took notes on that conversation. The Hearing Examiner found that during the ensuing "loud and tense" discussion between Cohan and Garlanger, Garlanger physically intimidated Cohan. 26 NJPER at 388, 391. ¶

A fourth incident occurred on April 16. Garlanger left his work area at about 1:30 p.m. to go to Larch Hall to meet a new student and escort him to class. He asked Yvonne Gould, a teaching assistant, to page him if his current student arrived for class. Although Garlanger did not locate the new student, he remained at Larch Hall. He read the student's assessments; played ping-pong with a patient; walked to the "team room" to learn more about the new student; and read another student's chart. He left Larch Hall at about 2:35 p.m and left work soon after. He had permission to leave early to attend a college class. ¶

While Garlanger was at Larch Hall, his current student arrived for class at about 1:40 p.m. Gould asked Sheffield to page Garlanger, because she does not have paging privileges. Sheffield refused and asked Gould to supervise the student until Garlanger returned. Sheffield later went to Larch Hall and learned that the new student had been in a talent show rehearsal from 1:30 p.m. to about 2:50 p.m. ¶

Sheffield was concerned that Garlanger had not been in his work area for over one hour. He wrote a memorandum to Dolinski describing what he had learned about Garlanger's whereabouts. While Sheffield did not recommend disciplining ¶

Garlanger, Dolinski believed the information he provided justified reprimanding Garlanger without asking for his version of events. Dolinski stated that teachers need supervisory approval to leave their work area or change their educational programs. ¶

Analysis ¶

We turn first to CWA's contention that the State illegally reprimanded Garlanger for his March 28 "harangue" to Davis concerning Smith's rights. We focus, as did the Hearing Examiner, on whether Garlanger's conduct was protected. If it was, the reprimand would tend to interfere with employees' statutory rights and would independently violate 5.4a(1), regardless of the employer's motive. See Hamilton Bd. of Ed., P.E.R.C. No. 79-59, 5 NJPER 115 (¶10068 1979); City of Asbury Park , P.E.R.C. No. 80-24, 5 NJPER 389 (¶10199 1979); UMDNJ-Rutgers Med. School , P.E.R.C. No. 87-87, 13 NJPER 115, 116 (¶18050 1987). ¶

Like State of New Jersey (Treasury Dept.), P.E.R.C. No. 2001-51, 27 NJPER (¶2001), this case requires us to locate the line between a union representative's protected representational activity and an employee's unprotected workplace misconduct. We reiterate some of the principles set forth there. ¶

The first principle is that in negotiations and grievance discussions, management officials and union representatives meet as equals and exchange views freely and frankly. See, e.g., Crown Central Petroleum Corp. v. NLRB, 430 F.2d 724, 74 LRRM 2855 (5th Cir. 1970); NLRB v. Southwestern Bell Telephone Co., 694 F.2d 974, ¶

112 LRRM 2526 (5th Cir. 1982); Black Horse Pike Reg. Bd. of Ed ., P.E.R.C. No. 82-19, 7 NJPER 502 (¶12223 1981); Hamilton Tp. Bd. of Ed ., P.E.R.C. No. 79-59, 5 NJPER 115 (¶10068 1979); City of Asbury Park , P.E.R.C. No. 80-24, 5 NJPER 389 (¶10199 1979). ¶

The second principle is that, while the courts have allowed leeway for adversarial and impulsive behavior in negotiations or grievance meetings, such representational conduct may lose its statutory protection if it indefensibly threatens workplace discipline, order, and respect. Compare Crown Central, 74 LRRM at 2860 and NLRB v. Thor Power Tool Co. 351 F.2d 584, 60 LRRM 2237 (7th Cir. 1965); Felix Industries Inc. v. NLRB , 331 NLRB No. 12, 164 LRRM 1137 (2000); Atlantic Steel Co ., 245 NLRB No. 107, 102 LRRM 1247, 1249 (1979). ¶

A third set of principles pertains to a union representative's role in a Weingarten investigatory interview. That role is limited and non-adversarial; therefore, the latitude granted for perceived misconduct is narrower than in the negotiations and grievance settings. Thus, an employer has no duty to bargain with a union representative attending the interview and the employer commands the time, place and manner of the interview. Weingarten, 88 LRRM at 2692; UMDNJ at 535; United States Postal Service v. NLRB, 969 F.2d 1064, 140 LRRM 2639 (D.C. Cir. 1992). The right to representation may not interfere with legitimate employer prerogatives -- for example, an employer may decide not to interview the employee at all if the employee insists upon representation. State of New Jersey (State Police ), P.E.R.C. No. 93-20, 18 NJPER 471 (¶23212 1992). Weingarten does not place the union representative in equal control of the interview or permit a representative to turn an investigatory interview into an adversarial contest. New Jersey Bell Telephone Co., 308 NLRB No. 32, 141 LRRM 1017 (1992); Yellow Freight System, 317 NLRB No. 15, 149 LRRM 1327 (1995); Mead Corp., 331 NLRB No. 66, 2000 NLRB Lexis 393 (2000). ¶

Within this framework, we consider whether Garlanger's March 28 conduct was protected. Preliminarily, we note that Cohan exercised her right under Weingarten to end the interview in her office and chose instead to obtain the information she sought by eliciting written statements from Smith and Chiari. And Davis also had a right to end the ensuing gathering in Smith's office --neither a grievance meeting nor a Weingarten interview -- and to direct the employees to return to work. CWA's exceptions concerning this incident presume that Garlanger had an equal right with management to decide when the Weingarten meeting and the impromptu gathering would be ended. We reject that presumption. ¶

After Davis ended the gathering in Smith's office and directed employees to return to work, Garlanger followed Davis down a hallway accessible to staff and patients and continued to "discuss" the episode by yelling. When Cohan then found him in a location with patients nearby, she told him to lower his voice, but he refused. Under all the circumstances, we conclude that ¶

Garlanger lost the protection he had had as a Weingarten representative when he engaged in this harangue in an attempt to continue a meeting which the employer had twice exercised its right to end and in locations where staff and patients could witness his outburst. Compare Atlantic Steel (in balancing employees' heavily protected right to representation in negotiations and grievance processing against the employer's right to maintain workplace discipline, the NLRB considers: (1) the place of the discussion; (2) the subject of the discussion; (3) the nature of the employee's outburst; and (4) whether the outburst was provoked by an unfair labor practice. ¶

CWA urges that a union's right to dialogue would be eviscerated if it "terminates the moment management prematurely declares a meeting to be concluded." Federal case law has endorsed that view in the grievance setting. See United States Postal Service v. NLRB, 652 F .2d 409, 412, 107 LRRM 3249 (5th Cir. 1981) (Act's protection may embrace a cooling-off period after grievance meetings, with the appropriateness and duration of a cooling off period depending on the facts of each case); see also Thor Power Tool; NLRB v. Southwestern Bell , 694 F.2d 974, 977, 112 LRRM 2526 (5th Cir. 1982). Without resolving this question now, we think it is likely that the rationale of United States Postal Service and related cases does not apply with the same force in the Weingarten context, where the employer and representative are not engaged in a free and frank exchange of views; and where the employer has the right to discontinue an interview when it sees fit. New Jersey State Police; United States Postal Service , 241 NLRB No. 18, 100 LRRM 1520 (1976). But we will assume that the Act's protection of Garlanger as a Weingarten representative did extend through a cooling off period while he walked Smith to her office. The Hearing Examiner so found and the State did not except to that conclusion. Nevertheless, we agree with the Hearing Examiner's further conclusion that the cooling-off period did not extend to Garlanger's yelling in locations accessible to staff and patients after the Weingarten meeting had ended and after Davis had concluded the gathering in Smith's office and directed the employees to return to work. Therefore, the employer did not violate the Act when it reprimanded Garlanger for his March 28 conduct. ¶

We turn next to CWA's exception to the Hearing Examiner's finding that Garlanger physically intimidated Cohan on March 29. This is the background. ¶

The Hearing Examiner found that after Garlanger had concluded his call to the Ancora executive, Cohan directed him to return to his classroom. Garlanger then "caustically invited" Cohan to read a Weingarten rights document on the bulletin board and a loud and heated exchange ensued, with Cohan loudly insisting that he return to class. 26 NJPER at 358. While the Hearing Examiner found that this exchange was protected, she also accepted Cohan's statements that she was intimidated and scared when ¶

Garlanger yelled at her from as close as six inches; pointed his finger at her; and insisted that she had violated federal law. 26 NJPER at 388, 391. ¶

The Hearing Examiner accepted Cohan's account and declined to credit Garlanger's statements that he had never been less than three to five feet away from Cohan; pointed his finger at her; or intimidated her. While disturbed by Cohan's "untrustworthy denials" concerning her note-taking during Garlanger's telephone call, the Hearing Examiner concluded that it "was more likely than not" that Garlanger had intimidated Cohan, given his outburst the day before; his conceded temper; his yelling about employee rights within a secretary's earshot just before Cohan observed Garlanger make the phone call; and his discredited testimony on two other points. 26 NJPER at 380.3/ ¶

CWA argues that crediting Cohan concerning the intimidation is inconsistent with determining that Cohan was untrustworthy about the note-taking. We disagree. The Hearing Examiner also found some portions of Garlanger's testimony untrustworthy. We will not disturb the Hearing Examiner's ¶

Note3/ The discredited testimony appears to be Garlanger's statements that: (1) he did not intend Davis to hear his comments as he was walking down the hall with Smith; and (2) Cohan never stated that the meeting in her office was over, but simply walked out with Chiari. 26 NJPER at 387; 392 n.4. ¶

credibility determinations, given her opportunity to observe the witnesses. ¶

The Hearing Examiner also credited Marion Allen, a supervisor who observed Cohan and Garlanger about twenty feet apart in the hallway, with Garlanger walking away from Cohan. While CWA argued that Allen's testimony undercut Cohan's account, the Hearing Examiner concluded that Allen had simply witnessed the tail end of the incident. The evidence supports that conclusion. ¶

We thus find that Garlanger intimidated Cohan by yelling at her from as close as six inches and pointing his finger at her. Reprimanding him for this misconduct did not violate the Act. ¶

The Hearing Examiner found that Cohan's observation of, and note-taking during, Garlanger's telephone call to the Ancora executive amounted to surveillance violating 5.4a(1). But that finding was simply part of her analysis of whether Garlanger's conduct was protected given the Atlantic Steel factors, including whether conduct was provoked by an unfair practice, not a determination that the employer had committed a separate unfair practice. 26 NJPER at 391. The unfair practice charge did not allege that Cohan's note-taking violated the Act and the Hearing Examiner stated that she would not make findings of fact and law which exceeded the pleadings and the substance of the Complaint. 26 NJPER at 392. We therefore decline to order any relief concerning the note-taking incident. See Felix Industries (NLRB will consider whether employer's conduct provoked allegedly unprotected activity, but will not find separate unfair practice if employer's conduct was not pled in Complaint). ¶

Finally, CWA contends that, absent Garlanger's protected activity in connection with Smith, he would not have been reprimanded for his one-hour absence from his work area on April 16. Such allegations are governed by the standards established in In re Bridgewater Tp., 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. CWA has not met that burden. 4/ ¶

This aspect of the reprimand was triggered by Sheffield's memorandum to Dolinski. There is no contention that the memorandum was motivated by anti-union animus or by Garlanger's activities in connection with Smith. Sheffield, a charging party witness, was not involved in those events and, indeed, criticized Cohan's interaction with employees. Instead, Sheffield was concerned that Garlanger was not in his assigned area for a one-hour period. ¶

CWA argues that retaliatory intent can be inferred because Dolinski reprimanded Garlanger although Sheffield had not recommended discipline; Dolinski did not ask for Garlanger's ¶

Note4/ We do not, of course, consider the merits of the reprimand as opposed to the motive for it. ¶

input; and teachers commonly leave their work areas and ask other teachers or paraprofessionals to cover for them. We disagree. ¶

First, Sheffield never makes disciplinary recommendations and instead merely represents information to Dolinski so she can decide what to do (2T114). Second, CWA did not establish that teachers commonly left their classrooms for one-hour periods when they were expecting students. Teachers may ask others to cover for their classes for 10 to 15 minutes when they must go to another building to escort new students back to class, but this type of coverage is distinct from securing a replacement teacher. 26 NJPER at 389. The Hearing Examiner inferred that Garlanger's absence for a one-hour period required a replacement teacher and that having Gould, a teaching assistant, supervise his student is the type of program change that required supervisory authorization. 26 NJPER at 389. ¶

Finally, we do not infer retaliatory intent from Dolinski's decision not to question Garlanger. Dolinski credibly explained, without rebuttal, why she proceeded as she did: Sheffield had "done all the work" and a teacher's unauthorized absence for that long warranted discipline. We thus conclude that protected activity did not motivate this aspect of the reprimand. ¶

OrderORDER ¶

The Complaint is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners McGlynn, Muscato, Ricci and Sandman voted in favor of this decision. Commissioners Buchanan and Madonna opposed. ¶

DATED: March 29, 2001 ¶

Trenton, New Jersey ¶

ISSUED: March 30, 2001 ¶