P.E.R.C. No. 2001-65, UMDNJ

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY, Respondent, -and- Docket No. CO-H-97-397 CWA, LOCAL 1031, AFL-CIO, Charging Party. ¶

AppearancesAppearances: ¶

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

(Michael J. Gonnella, Deputy Attorney General) ¶

For the Charging Party, Weissman & Mintz, ¶

attorneys (Mark Rosenbaum, on the brief) ¶

DECISION ¶

On May 28, 1997 and February 8, 1998, CWA, Local 1031, AFL-CIO (CWA), filed an unfair practice charge and amended charge against the University of Medicine and Dentistry of New Jersey (UMDNJ), alleging that UMDNJ violated 5.4a(1), (2), (3) and (7) of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq.1/ CWA contends that UMDNJ retaliated against Local 1031 ¶

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 ¶

Footnote Continued on Next Page ¶

president John Rose and unit member Richard Gromek for their protected activity by threatening and reassigning Rose; denying him the right to attend negotiations sessions and membership meetings; requiring him to obtain permission for protected activity; charging him with falsifying documents; and ultimately demoting Rose and terminating Gromek. ¶

On December 18, 1997 and March 10, 1998, a Complaint and amended Complaint issued. On April 8, 1998, UMDNJ filed an Answer. It maintained that Rose's reassignment was the result of a campus-wide reorganization; that Rose was never denied permission to attend union meetings; and that he was demoted and Gromek terminated because of poor job performance. It also alleged that the challenge to the reassignment was time-barred. ¶

On April 16, 1998, CWA withdrew that portion of the charge relating to Gromek. Gromek's termination was arbitrated. ¶

On October 26 and 28, December 7, 1998, and January 25 and 26, 1999, Hearing Examiner Elizabeth M. McGoldrick conducted a hearing. The parties examined witnesses and introduced exhibits. ¶

Note1/ Footnote Continued From Previous Page ¶

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. (7) Violating any of the rules and regulations established by the commission." ¶

CWA withdrew the allegation that Rose's reassignment was motivated by anti-union animus (4T25-4T26). ¶

On April 14 and 15, 1999, UMDNJ and CWA filed post-hearing briefs. On April 21, UMDNJ moved to reopen the record to admit an arbitration award ordering that Gromek be reinstated to a non-supervisory position; the award had been issued on April 12. CWA opposed the motion. On May 3 and June 25, UMDNJ and CWA filed reply briefs. On April 27, 2000, the Hearing Examiner denied the motion to reopen the record. ¶

On December 22, 2000, the Hearing Examiner recommended that we find that UMDNJ violated 5.4a(1) and (3) by demoting Rose in retaliation for his union activities. H.E. No. 2001-15, 27 NJPER 80 (¶32032 2000). She found that Frank Watts, Director of Physical Plant, showed hostility toward Rose's CWA activity by advising him that he should be selective about union activity; admonishing him that his first priority should be his supervisory responsibilities; and indicating that Rose was not a team player. She also concluded that UMDNJ set unreasonable productivity goals for Rose and found to be pretextual the stated reason for Rose's demotion -- Rose's posting of a disciplinary notice that reprimanded him for not meeting those goals. She recommended that we dismiss the 5.4a(2) and (7) portions of the charge. 27 NJPER at 86-87. ¶

On January 17, 2001, UMDNJ filed exceptions. It contends that the Hearing Examiner erred in concluding that Rose's demotion was motivated by anti-union animus and objects to her crediting of aspects of Rose's testimony. It also argues that preclusive effect must be given to factual findings in the arbitration award involving Gromek. ¶

CWA urges adoption of the Hearing Examiner's recommendations and moves to strike the UMDNJ exception that pertains to the arbitration award. ¶

We start with a chronology. We incorporate the Hearing Examiner's findings of fact, as supplemented here. ¶

Facts ¶

From 1984 until May 1995, John Rose was employed by UMDNJ in non-supervisory maintenance, craft or construction positions and was active in the union representing those employees. In May 1995, he was promoted to maintenance and construction supervisor and assigned to University Hospital. Soon after, he became a shop steward for the supervisors' unit. We add to finding no. 1 that from approximately July 1995 through July 1996, Watts was Rose's direct supervisor (5T6-5T7). For January 1995 through January 1996, Watts rated Rose a "4": "performance frequently exceeds standards. No shortcomings exist; goals are always met" (5T9). ¶

We also add that, in July 1996, Watts was promoted to Assistant Director of Physical Plant and Robert Gallt became Rose's direct supervisor (1T147; 5T7). In November 1996, the physical plant department was reorganized into eight zones. Watts assigned Rose to Zone 1, the Medical Science Building and Dental ¶

School, because it was a high-profile assignment and Rose had the potential to be one of the better supervisors. 27 NJPER at 80. For the January 1996 to January 1997 period, Gallt rated Rose a "4" (5T11). From 1995 through 1997, many hospital administrators, including Watts, commended Rose's work. ¶

During 1996, Rose was on the negotiating team for the 1996-1999 contract between UMDNJ and Local 1031. The contract was executed on January 31, 1997. We add to finding no. 2 that negotiations began in August or September 1996 (2T124-2T125). Rose considered himself "aggressive" in those negotiations. 27 NJPER at 81. We modify finding no. 2 to state that Rose was elected president of the Newark branch of Local 1031 in October or November 1996 (2T125)." 27 NJPER at 81. After he became president, Rose's responsibilities increased and he spent time at Local 1031's office and attended grievance and other hearings and CWA monthly executive meetings. ¶

On February 5, 1997, Watts approved Gallt's 1996-1997 evaluation of Rose (5T11). On February 12, Rose attended a labor-management committee meeting on behalf of CWA. Watts was also at the meeting, where Rose and other employee representatives raised several concerns about the physical plant department. 27 NJPER at 81. We add to finding no. 3 that one of the issues raised was that the chargeback unit in the physical plant department was understaffed (2T134; 3T15). ¶

On February 20, 1997, Watts sent Rose a memo (CP-1), advising him that union representatives were contractually required to give management reasonable notice of requests to post union notices or attend grievance, negotiations or other scheduled meetings. Watts continued that Rose "must be selective with the amount of union activity," given his responsibilities for the medical science and dental school buildings. Watts stated that he should be notified of all of Rose's "approved requests[s] for union business. No union activity should be conducted prior to my knowledge." Watts also advised Rose he had to provide "focused leadership." We add to finding no. 3 that prior to CP-1, Gallt had approved Rose's requests for union leave without apprising Watts (1T148). After CP-1, Gallt continued to approve Rose's requests for vacation or sick leave without informing Watts (1T149). ¶

Watts issued CP-1 after an emergency occurred and Watts was unable to reach any of his supervisors, because they were at a lunchtime union meeting. Lunchtime membership meetings are scheduled from 11:30 a.m. until 2:00 p.m. so that supervisors can "drop in" for brief periods. While members do not stay for the entire 2.5 hour meeting, we add to finding no. 3 that Rose would sometimes do so, in which case he would take vacation or holiday time (3T60). We also add to finding no. 3 that Watts explained that he wanted to clarify that while union activity was sanctioned, it was not a priority (5T54). ¶

Rose spoke to Watts shortly after receiving CP-1. We add to finding no. 3 that, during the conversation, Rose asserted that a laid-off supervisor had bumping rights, and also spoke to Watts about CP-1 itself and the February 12 meeting (2T132). According to Rose, Watts told him that his union activity could affect his evaluation. Watts denied saying so, but the Hearing Examiner credited Rose's belief that Watts made the statement sometime during early 1997. 27 NJPER at 87. ¶

On March 5, 1997, CWA representative Kathleen HernandezBarnett sent Watts a memorandum about the February 1997 labormanagement meeting and CP-1. In his March 17 reply, Watts criticized her "spurious accusations" about his hiring practices and stated that it was his responsibility to be aware of "any and all union activities." He continued that when Rose was reminded of his responsibility to inform Watts of all union activity, it was incumbent upon him to "react as a member of my team." He denied harassing Rose; noted that he had supported Rose; and observed that Rose, as a first-line supervisor and union officer, was responsible both for performing his union duties and maintaining his zone. He stated that the physical plant would pursue its goal of excellence; would not "tolerate aspersion" of the department; and would not be "intimidated into acquiescing to CWA requests under duress." Rose and the other supervisors were sent copies of CP-25. ¶

We add to finding no. 1, that on the same day he sent his reply to Hernandez-Barnett, Watts issued a memorandum to all physical plant supervisors advising them of reassignments and zone adjustments (R-14). Among other changes, Rose's "Zone 1" was absorbed by zones 2 and 3 and placed under Paul Crawford's management. ¶

Watts's March 17 memorandum also noted that the chargeback unit, which performs all construction and renovation work, had been operating shorthanded although work was on the upswing (R-14). Rose was transferred to chargeback as supervisor, where he became responsible for performing cost estimates and supervising a multi-craft construction crew. Watts assigned Rose to chargeback because of his performance and because he had managed a construction company (5T23; 5T102). ¶

Prior to Rose's transfer, no supervisor had been assigned to the unit (5T23). Gromek was assistant supervisor of chargeback, having been "bumped down" from supervisor as a result of a layoff in the summer of 1996. Gromek was a Local 1031 member, but was not active in the union. ¶

Gallt was also assigned to do cost estimates for the chargeback unit on a part-time basis (1T152). That unit was under Paul Crawford's supervision so he became Rose's direct supervisor. ¶

In April 1997, Rose was assigned to schedule a crew to paint parking lots. Crawford directed him to assign Hispanic employees to one lot and African-Americans to another. Rose reported this directive to the Affirmative Action Office, which counseled Crawford that such assignments were inappropriate. That office also arranged for the entire physical plant staff to attend sensitivity training. 27 NJPER at 82. ¶

At an April 21, 1997 meeting of supervisors, Watts informed attendees about the sensitivity training (5T27). Rose testified that Watts also commented that Rose was not a team player because he had made the report. While Watts denied making that comment, the Hearing Examiner credited Rose's testimony and concluded that Watts did not feel Rose was a team player because of Rose's protected activities. 27 NJPER at 82. ¶

At the same meeting, Watts directed Gromek and Rose to "purge" a backlog of "single craft" work orders. That assignment required telephoning or visiting 130 customers to determine if they still needed work done. Rose was given until May 1, 1997 to carry out this directive. On May 6, Watts wrote both Rose and Gromek a memorandum (CP-28) stating that they had "disregarded a direct order." The memoranda branded their actions as "totally unacceptable" and warned that "any repeat of this type of behavior will result in disciplinary action up to and including termination" (CP-28). 27 NJPER at 82-83. ¶

Watts, who stated that Rose had been a good and very hard worker, never had any problem with Rose's performance until the incident described in CP-28. Watts recalled that Rose's performance began to "slip" around the time of CP-28; he speculated that Rose might have had difficulties with time management because of his involvement in other activities -- a phrase the Hearing Examiner interpreted to mean union activities. 27 NJPER at 83, 87 n.9. At another point, Watts commented that ¶

Rose's performance began to deteriorate in February 1997 -- a statement the Hearing Examiner found to be inconsistent with Watts's representation that Rose was transferred to chargeback based on his prior (good) performance. 27 NJPER at 83. In addition, Watts stated that Rose became hostile and aggressive around the time that CP-28 was issued. We add to finding no. 5 that Watts later clarified that "belligerent" was the best term to describe Rose's attitude (6T25). ¶

On May 13, 1997, Crawford reprimanded Rose for not scheduling workers for a Friday morning assignment on a construction project (CP-26). Until then, work on the project had been performed only at night, so as not to disrupt patient services. The Hearing Examiner concluded that a misunderstanding caused Rose's inaction. He was advised that another infraction would result in suspension or termination. 27 NJPER at 83-84. ¶

On July 18, 1997, Crawford directed Rose, Gromek, and three others to complete ten multi-craft estimates per week. On July 23, Rose and Gromek wrote to Crawford expressing concern that they could not meet those goals given their other assignments. On July 28, Crawford responded that his order stood. Rose, Gromek and the rest of the unit met their goals and the multi-craft backlog decreased. However, the single-craft backlog did not. Accordingly, on September 16, Crawford directed Rose and Gromek to turn in ten single-craft estimates per day or fifty per week. We add to finding no. 7 that Gallt was directed to submit five estimates because he worked part-time for the unit (CP-32). ¶

On September 26, 1997, Rose and Gromek again wrote to Crawford and stated that the goals could not be met given staffing levels, employee illnesses, and their other assignments (CP-33). On October 15, Hernandez-Barnett met with the UMDNJ Labor Relations Director to discuss chargeback unit issues raised by Rose. A follow-up memorandum identified concerns about low staffing levels; abusive management; constant shifting of priorities; and staff fears that they would be disciplined if they used the union to discuss problems. ¶

We add to finding no. 7 that Rose, Gromek and Gallt could not complete the goals set forth in Crawford's September 21 memorandum. On October 21, 1997, each of them received a "written warning in lieu of a three-day suspension" for poor job performance (2T17-2T19). Rose's letter also mentioned two instances where he allegedly did not follow timekeeping procedures with respect to employees he supervised. We also add that, for three of the five weeks measured by management, Rose and Gromek submitted the same number of estimates (3T44). However, since estimates differ in complexity, that circumstance does not signify that they performed an identical amount of work (3T74-3T75). Rose denied "conspiring" with Gromek to turn in a minimal number of estimates. Gromek did not testify (3T33). ¶

Upon receiving the October 21 notice, Rose highlighted portions of it and posted it on a bulletin board above the photocopier in his and Gromek's office, which is accessible to other supervisors at UMDNJ and craft employees. Rose regularly highlighted and posted notices to remind himself of his responsibilities. Gromek posted his notice alongside Rose's. ¶

On October 24, 1997, Crawford demoted Rose to his former non-supervisory position of Mechanical Systems I Mechanic. In a memorandum issued on that date, Crawford wrote that Rose was a first-line supervisor and the first line of management in the department, and that the postings by him and Gromek were "deliberate acts of retaliation and defiance," and intentional efforts to provoke management (CP-36). Crawford also stated that Rose had not submitted the required number of estimates for the week, despite the warning a few days earlier. The memorandum continued that, while the posting was grounds for dismissal, Rose was being demoted because of his length of service. ¶

Gromek was terminated for posting his disciplinary notice. 27 NJPER at 85-86. We add to finding no. 7 that Watts explained that Gromek was fired rather than demoted because he had been hired as a supervisor and no craft position was available (5T37). ¶

CWA's Motion to Strike UMDNJ's Exception ¶

UMDNJ excepts to the Hearing Examiner's decision not to admit the Gromek arbitration award, arguing that certain arbitral findings had to be given preclusive effect. CWA moves to strike that part of UMDNJ's exceptions, along with the award attached as an exhibit. It maintains that exceptions must be based on the record and the award was not admitted. It also suggests that, to avoid prejudice, the Chair should decide the motion. ¶

We deny CWA's motion. N.J.A.C . 19:14-4.6(a) contemplates that the full Commission, not the Chair alone, will review a Hearing Examiner's ruling on a motion. The arbitration award was appropriately submitted to us in connection with the challenge to the Hearing Examiner's decision not to admit it. ¶

UMDNJ's Exception to Hearing Examiner's Ruling ¶

on Admissibility of Arbitration Award ¶

The Hearing Examiner declined to reopen the record to admit the Gromek award, reasoning that the award was not "inherently relevant" because Rose was not a grievant and the issues in the arbitration and unfair practice proceedings were different. UMDNJ argues that she was required to admit the award and to give preclusive effect to two findings. We disagree. The award was not issued until after the hearing closed and all evidence had been submitted. In this posture, we would be inclined to affirm the Hearing Examiner's discretionary decision not to reopen the record, regardless of the merits of UMDNJ's arguments had the award been available earlier. In any case, the award did not adjudge the legal rights of Rose, the only employee implicated in the Complaint. Compare Thornton v. Potamkin Chevrolet, 94 N.J . 1, 8 (1983) (grievance awards involving litigants in civil rights suits should be admitted in Division of Civil Rights proceedings and given appropriate weight depending on articulated factors). ¶

Even if the award had been admitted, the arbitrator's findings would not have been entitled to preclusive effect. Where a charge alleges retaliation for engaging in protected activity, section 5.4c precludes deferral to arbitration. Jefferson Tp. Bd. of Ed. v. Jefferson Tp. Ed. Ass'n, 188 N.J. Super . 411, 414-415 (App. Div. 1982); cf. Thornton (arbitration awards are not binding on the Division of Civil Rights given the Division's mandate to vindicate the public interest in enforcing the NJLAD; the agency's sensitivity to deciding such statutory claims as opposed to the arbitrator's focus on contract rights; and the lack of equivalency between arbitration vs. agency adjudications). Further, collateral estoppel or issue preclusion will not be applied where a finding was not essential to the determination or where the party opposing preclusion could not as a matter of law have obtained review of the judgment in the initial action. See Restatement (Second) of Judgments, § 27, § 28(1) (1982). The Gromek award did not address Rose's legal rights and the findings made were not essential to a determination of whether there was just cause for Gromek's termination or to the subsidiary issues of Gromek's intent in posting his own reprimand or the reason he did not meet productivity goals. Further, the arbitrator ultimately concluded that Gromek's termination was without just cause so CWA could not have appealed the arbitrator's rulings on the posting and productivity issues, even with respect to Gromek, unless it moved to vacate the award because of the remedy ordered by the arbitrator. For all these reasons, we affirm the Hearing Examiner's decision not to reopen the record. ¶

Exceptions to Hearing Examiner's Report ¶

In concluding that UMDNJ violated 5.4a(1) and (3) by demoting Rose, the Hearing Examiner applied the standards established in In re Bridgewater Tp., 95 N.J . 235 (1984). That is, 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 or circumstantial evidence showing that: (1) the employee engaged in activity protected by the Act; (2) the employer knew of the activity; and (3) the employer was hostile toward the activity. ¶

If the employer does not present evidence of a motive not illegal under the Act, or if its explanation has been rejected as pretextual, there is sufficient basis for finding a violation without further analysis. Where the record demonstrates that both motives unlawful under our Act and other motives contributed to a personnel action, 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. ¶

The Hearing Examiner found that the reason offered for Rose's demotion was pretextual and that the weight of the evidence did not support UMDNJ's claimed business justification. 27 NJPER at 87. Her analysis rested on several factual underpinnings; ¶

first, that Rose had an exemplary work record until May 1997; second, that his involvement in union activities increased in late 1996 and 1997, when he became involved in negotiations and was elected president of Local 1031's Newark branch; third, that Watts and Crawford were hostile to that activity, particularly as evidenced by Watts's February and March 1997 memoranda to Rose and Hernandez-Barnett (CP-1 and CP-25); and fourth, that Watts and Crawford set unreachable productivity goals and refused to adjust them. ¶

In concluding that Rose was demoted in retaliation for his CWA activity, the Hearing Examiner gave weight to the severity of the reprimand Rose received for not eliminating a work backlog shortly after he was assigned to the unit (CP-28); the severity of Crawford's May 1997 reprimand of Rose for an incident that resulted from a misunderstanding (CP-26); and the severity of the sanction imposed on Rose for posting his reprimand vis-a-vis the punishment received by other supervisors for more serious infractions. She also found that Rose's attitude and demeanor did not change after he was transferred to chargeback, but that Watts began to perceive him as belligerent because of his protected activity. Noting that "timing of an action can be indicative of motive," she also found it significant that CP-1 and CP-25 were issued soon after Rose's protected activity increased. 27 NJPER at 86-87. ¶

UMDNJ does not challenge the Hearing Examiner's conclusions about the unreasonable work goals; the severity of ¶

Rose's punishment (demotion); or Rose's employment record before May 1997. It does argue that the Hearing Examiner erred in inferring hostility towards protected activity from CP-1 and CP-25. It also maintains that the Hearing Examiner should have considered that Rose had been active in Local 1031 since 1995, yet was favorably treated until 1997. Finally, it alleges that the Hearing Examiner inappropriately relied on Rose's beliefs or feelings. Based on these exceptions, it maintains that the record does not establish that Rose's demotion was illegally motivated. ¶

The Hearing Examiner's analysis is supported by the record. CP-1 did not simply advise Rose to adhere to contract requirements about notice of union meetings. CP-1 also advised that Rose had to be "selective about his union activity" and stated that "[n]o union activity should be conducted prior to my knowledge." Those comments trenched on Rose's right to engage in union activity during lunches or breaks and also directed a limit on the amount of that activity, regardless of when it occurred. Compare Downe Tp., P.E.R.C. No. 86-66, 12 NJPER 3 (¶17002 1985) (directive that employee "should refrain from participating in union activities during her regular work day" violated 5.4a(1)). Moreover, CP-1 distinguished union leave from all other approved leaves, of which only Gallt, Rose's direct supervisor at the time, had to be apprised. That circumstance indicates a hostility to union functions, not simply a reminder that Rose must meet contract requirements for meetings. 2/ ¶

Similarly, CP-25, Watts's memorandum to Hernandez-Barnett stated that Rose was obligated to respond as a team member to CP-1; reiterated Watt's view that he had to be aware of all union activities; angrily referred to CWA's inquiries about the status of personnel matters; and stated that he would not "tolerate aspersion" of his department or be coerced by CWA. While noting Rose's responsibilities as a union officer, Watts referred twice to Rose's status as a "first-line supervisor for management" and copied all other supervisors. ¶

This memorandum went beyond legitimate criticism of an employee representative's conduct. Black Horse Pike Reg. Bd. of Ed., P.E.R.C. No. 82-19, 7 NJPER 502 (¶12223 1981). It indicates hostility toward Rose's protected activity by criticizing his and CWA's response to Watts's inappropriate directive that he be selective about union activity and by suggesting discomfort with Rose's dual role as a supervisor and union president. See Willingboro Bd. of Ed., P.E.R.C. No. 98-113, 24 NJPER 171 (¶29085 1998), aff'd 25 NJPER 322 (¶30138 App. Div. 1995) (board members' belief that union officers could never "switch hats" illegally ¶

Note2/ We accord less weight than did the Hearing Examiner to the fact that the other supervisors did not receive a similar memorandum. Given Watts's assumption that the contract notification requirements pertained, he could reasonably expect notification from Rose as a union official. ¶

motivated their decision not to promote union officer to supervisory position). ¶

The Hearing Examiner also reasonably found that the timing of CP-1 and CP-25 indicated hostility towards protected activity. While UMDNJ managers may not have been hostile to Rose's initial activities as a Local 1031 steward or president, the Hearing Examiner reasonably inferred that the angry tone of CP-1 and CP-25 were triggered in part by the intensification of Rose's union activities in late 1996 or early 1997 and his criticisms of the physical plant department -- including understaffing in chargeback -- at the labor-management committee meeting in February 1997. CP-1 was issued soon after that meeting and CP-25 stated that Watts would not tolerate aspersion of that department. ¶

Finally, UMDNJ argues that the Hearing Examiner inappropriately credited, as probative evidence, Rose's "beliefs" that Watts had told him his union activity could affect his evaluation and that Watts did not consider him a team player; and Rose's "feeling" that Watts was picking on him because he made a report to the Affirmative Action office. We see no basis to disturb the Hearing Examiner's her conclusions. ¶

The Hearing Examiner reported Rose's testimony that Watts had told him that his union activity could affect his evaluation; noted that Watts denied making the statement; and observed that, on cross-examination, Rose could not pinpoint the date of the conversation. However, she then "credit[ed] Rose's belief that Watts made this comment at some point during the early months of 1997." 27 NJPER at 81, 87 n.5. This credibility determination implicitly finds that Watts made the statement in question. ¶

UMDNJ also contends that the Hearing Examiner erred in crediting Rose's "feeling" that Watts did not believe he was a team player. However, she found that Watts did not feel that Rose was a team player, based on CP-1; CP-25; and Rose's testimony about the affirmative action incident. 27 NJPER at 82. That conclusion is supported by Watts's own use of the phrase in CP-25 where Watts implied that Rose did not act as a "team player" when he received CP-1. Further, the Hearing Examiner found that Watts told Rose he was not a team player after he had reported Crawford to the affirmative action office. 27 NJPER at 87. On the same day he made that remark, Watts issued an unreasonable order to purge a backlog of 130 work orders within only 10 days. ¶

For the foregoing reasons, we reject UMDNJ's exceptions. Viewed as a whole, we conclude that the asserted reason for the demotion was pretextual. ¶

The record shows that, in late 1996, Rose was viewed as an exemplary employee with excellent evaluations and many commendations -- someone whom Watts thought would be promoted through the organization (5T95). After Rose became Local 1031 president and criticized the physical plant department in a labor-management committee meeting, Rose and CWA were warned, in strong terms, that Rose had to be selective about his union activity. During the March-October 1997 period, Rose and CWA pressed their concerns about the physical plant department to Watts and the UMDNJ Labor Relations Department; Rose reported Crawford to Affirmative Action and spoke with Watts about a supervisor's bumping rights; and Rose and Gromek complained to Crawford about unreasonable work goals. ¶

Watts viewed Rose as belligerent and, after his transfer to an understaffed unit, Rose was severely reprimanded for not meeting what the Hearing Examiner found, and UMDNJ does not now dispute, were unreasonable work goals. While Rose's demotion was precipitated by the posting incident, not lack of productivity per se , the two are linked because work goals were the subject of the posted reprimand and the memorandum demoting him also admonished him for not meeting those goals. 3/ In this posture, the record ¶

Note3/ Although we do not decide the question, the posting may have constituted protected activity to the extent it sought to "discuss" workload issues with other supervisors. See K-Mart Corp., 29 NLRB No. 80, 132 LRRM 1292 (1989) (employee discussion of work schedules is protected); Martin-Marietta Corp., 293 NLRB No. 89, 131 LRRM 1714 (1989) (notice posting protected where it invited discussion about outbreak of ¶

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shows that Watt's reason asserted for Rose's demotion was pretextual. Compare Ewing Bd. of Ed., P.E.R.C. No. 91-77, 17 NJPER 162 (¶22067 1991) (union president's non-renewal was motivated by his union activism where a change in his evaluation rating coincided with an intensification of a labor-management dispute and his manager acknowledged her relationship with the president had deteriorated because of his union activities). ¶

The Hearing Examiner analyzed this as a pretext rather than a dual motive case. 27 NJPER at 87. Even if we were to conclude that Rose's demotion was based on both lawful and unlawful motives, UMDNJ has not shown that it would have demoted Rose absent the protected activity. Supervisors who had committed such infractions as assaulting a colleague; endangering a patient by not performing a lab test; operating a vehicle without a license; and favoring a subordinate with whom the supervisor had a business relationship received discipline short of demotion. 27 NJPER at 86; 1T39-1T44).4/ ¶

Note3/ Footnote Continued From Previous Page ¶

illness in workplace and was prompted by a discussion with another employee). And even if the posting was seen by craft employees, we question whether it constituted "indefensibly disloyal" conduct. See Hardin, The Developing Labor Law, 137 (3d ed. 1992). ¶

Note4/ While Gromek was terminated, he also engaged in protected activity by, together with Rose, presenting his views to Crawford concerning working conditions in chargeback. ¶

For all these reasons, we hold that UMDNJ violated 5.4a(1) and (3) and we order Rose reinstated to his supervisory position. We also order that he receive back pay and interest from the date he was demoted. While UMDNJ argues that interest should not be awarded, its reliance on N.J.S.A. 59:13-8 is inapt. N.J.S.A . 59:13-8 bars prejudgment interest on contract claims against the State or a State agency, and does not pertain to backpay awards in connection with an employer's violation of the Act. An award of interest is necessary to make Rose whole for the unfair practice. Compare Salem Cty. Voc. Ed. Bd., NJPER Supp.2d 82 (¶63 App. Div. 1980). Finally, we dismiss the 5.4a(2) and (7) allegations. ¶

OrderORDER ¶

The University of Medicine and Dentistry of the State of New Jersey 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 demoting Supervisor of Maintenance and Construction John Rose in retaliation for Rose's CWA activities. 2. Discriminating in regard to the tenure of employment to discourage employees in the exercise of the rights guaranteed to them by the Act, particularly by demoting Supervisor of Maintenance and Construction John Rose in retaliation for Rose's CWA activities. ¶

B. Take the following action: ¶

1. Rescind the demotion of John Rose to Mechanic and restore him to the position of Supervisor of Maintenance and Construction. ¶

2. Expunge the disciplinary charges related to the demotion from his personnel file. ¶

3. Make Rose whole for any monies and fringe benefits lost by reason of his demotion on October 24, 1997, plus interest pursuant to R. 4:42-11(a) for each year. ¶

4. 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. ¶

5. Notify the Chair of the Commission within twenty (20) days of receipt what steps the Respondent has taken to comply with this order. ¶

All other 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 all voted in favor of this decision. None opposed. ¶

DATED: April 26, 2001 ¶

Trenton, New Jersey ¶

ISSUED: April 27, 2001 ¶