P.E.R.C. No. 2001-55, Camden Cty Shrf

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CAMDEN COUNTY SHERIFF Respondent, -and- Docket No. CO-H-97-364 PBA LOCAL 277, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Howard S. Wilson, attorney ¶

(Howard S. Wilson, of counsel) ¶

For the Charging Party, Szaferman, Lakind, Blumstein, Watter & Blader, attorneys (Stuart A. Tucker, of counsel) ¶

DECISION ¶

On April 25, 1997, PBA Local 277 filed an unfair practice charge against the Camden County Sheriff. On January 5 and August 21, 1998, the charge was amended. As amended, 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), (4) and (5),1/ between 1995 and 1998 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 ¶

Footnote Continued on Next Page ¶

Sheriff's Officer Thomas Aron because of his union activity; by transferring Aron to less desirable assignments; by failing to discipline a lieutenant who allegedly threatened Aron; by reprimanding Aron for filing a safety complaint; and by denying Aron's request for PBA business leave. ¶

On September 5, 1997, a Complaint and Notice of Hearing issued. On September 16, 1997, January 20, 1998, and September 22, 1998, the employer filed Answers specifically denying the allegations. ¶

Between December 1998 and March 1999, Hearing Examiner Elizabeth J. McGoldrick conducted six days of hearing. The parties examined witnesses and introduced exhibits. On May 24, 2000, the Hearing Examiner granted the PBA's motion to reopen the record to ¶

Note1/ Footnote Continued From Previous Page ¶

of 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. (5) 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." ¶

admit an affidavit from the Sheriff that had been submitted in connection with another proceeding. Final position statements were filed in July. ¶

On December 1, 2000, the Hearing Examiner issued her report and recommendations. H.E. No. 2001-13, 27 NJPER 71 (¶32031 2000). She found that the employer violated the Act by reprimanding Aron because he corresponded directly with the Sheriff as PBA delegate concerning a safety issue. She further found that the employer did not violate the Act by transferring Aron on November 4, 1996; refusing to discipline a lieutenant who had made threats against Aron; and denying Aron's request for leave to attend PBA meetings. The Hearing Examiner also recommended dismissing, as untimely filed, allegations concerning several of Aron's transfers and a denial of overtime. ¶

On December 29, 2000, the employer filed exceptions. It argues that no evidence supports a finding of hostility to protected rights. According to the employer, the reprimand was based on erroneous information and a mistaken belief about the circumstances surrounding Aron's safety complaint. It asserts that the reprimand has been removed from Aron's file. 2/ ¶

On January 22, 2001, the PBA filed an answering brief and a request that its brief be accepted as timely filed. The employer agreed to the request so we grant it. The PBA argues that whether ¶

Note2/ We deny the employer's request for oral argument. The issues have been fully briefed. ¶

the Sheriff or his subordinates were acting on incorrect information is irrelevant, as Aron was engaged in protected activity. In addition, it argues that the counseling report had not been removed from Aron's file at the time of the hearing. ¶

We have reviewed the record. We adopt and incorporate the Hearing Examiner's undisputed findings of fact (H.E. at 3-24). ¶

We begin with Hearing Examiner's finding that the employer violated N.J.S.A . 34:13A-5.4a(1) and (3) when it disciplined Aron as an employee when, as PBA State delegate, he wrote a letter to the Sheriff informing him of some safety issues involving the transportation unit. Aron had gone through the chain of command, first bringing the safety issues to the attention of Lieutenant Francis Schilling, his supervisor. When three weeks had passed without a response, he wrote his letter to the Sheriff. ¶

Aron was reprimanded for going outside the chain of command. Undersheriff Anthony Saponare directed Schilling to "counsel" Aron. Schilling did not tell Saponare that Aron had reported the safety concerns to him and Schilling carried out the directive to issue the counseling report. Saponare later learned that Aron had made a report through the chain of command. Undersheriff Thomas Gallagher was asked by the Sheriff to look into Aron's allegation that he was improperly counseled for going outside the chain of command. Gallagher learned from Schilling that Aron had made a report to Schilling. He also learned that Schilling had not reported Aron's complaint to Saponare. Gallagher recommended that the counselling be rescinded, but, as of the close of the hearing, the employer had not done so. ¶

An employer independently violates subsection 5.4(a)(1) if its personnel action tends to interfere with an employee's statutory rights and lacks a legitimate and substantial business justification. Orange Bd. of Ed., P.E.R.C. No. 94-124, 20 NJPER 287 (¶25146 1994); Mine Hill Tp. , P.E.R.C. No. 86-145, 12 NJPER 526 (¶17197 1986); New Jersey Sports and Exposition Auth., P.E.R.C. No. 80-73, 5 NJPER 550 (¶10285 1979). Gorman, Basic Text on Labor Law , at 132-34 (1976). The charging party need not prove an illegal motive. Hardin, The Developing Labor Law, at 75-78 (3d ed. 1992). ¶

Black Horse Pike Reg. Bd. Ed., P.E.R.C. No. 82-19, 7 NJPER 502 (¶12223 1981), teaches that an employer may criticize employee representatives for their conduct, but it cannot use its power as employer to convert that criticism into discipline or other adverse action against the individual as an employee when the conduct objected to is unrelated to that individual's performance as an employee. In this case, the employer disciplined the PBA State delegate for reporting safety concerns outside the chain of command. He did not go outside the chain of command, and thus there was no legitimate reason to discipline him. Further, there was no legitimate reason to maintain the discipline after the undersheriff learned that Aron had gone through the chain of command. ¶

Even if Aron had gone outside the chain of command, any objection the employer might have had should have been raised to ¶

Aron in his capacity as PBA delegate, not as employee. If the employer believed that the PBA should have followed some other procedure when raising safety concerns, it had a right to communicate that belief. But it did not have a legitimate reason to discipline Aron as an employee for his actions on behalf of the PBA. Accordingly, we conclude that the reprimand violated 5.4a(1). ¶

The Hearing Examiner separately found that the employer's action violated 5.4a(3) and, derivatively, a(1). Having found a violation of 5.4a(1) and by issuing an appropriate remedy, we need not reach the question of whether the reprimand was motivated by hostility to his protected activity. Any remedy for that violation would be the same. Cf. City of Hackensack, P.E.R.C. No. 78-71, 4 NJPER 190 (¶4096 1978), aff'd NJPER Supp.2d 58 (¶39 App. Div. 1979) (order to excise reprimand to remedy independent 5.4a(1) violation upheld; court did not consider whether a(3) was also violated). ¶

In the absence of exceptions, we adopt the Hearing Examiner's recommendation to dismiss the remaining allegations. ¶

OrderORDER ¶

The Camden County Sheriff 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 reprimanding Sheriff's Officer Thomas Aron for submitting a letter as PBA delegate directly to the Sheriff. ¶

B. Take this action: ¶

1. Withdraw the reprimand imposed against Sheriff's Officer Thomas Aron and expunge it from his record. ¶

2. 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. ¶

3. 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. ¶

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: March 29, 2001 ¶

Trenton, New Jersey ¶

ISSUED: March 30, 2001 ¶