P.E.R.C. No. 2003-4, Middlesex Cty Sherif

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of MIDDLESEX COUNTY SHERIFF, Respondent, -and- Docket No. CI-H-98-59 JOSEPH A. KASHA and STEVEN ECKEL, Charging Parties. COUNTY OF MIDDLESEX, Respondent, v. OAL Dkt. No. CSV 10229-98 STEVEN ECKEL, Appellant. ¶

AppearancesAppearances: ¶

For the Respondents, Purcell, Ries, Shannon, Mulcahy & O'Neill, attorneys (Kevin Kovacs, of counsel) ¶

For the Charging Parties-Appellant, Brian M. Cige, attorney ¶

DECISION ¶

On January 23 and October 6, 1998, February 18, 1999, and October 5 and 17, 2000, former FOP Local 59 president Joseph Kasha and current FOP Local 59 president Steven Eckel filed an unfair practice charge and amended charges against the Middlesex County Sheriff. The charges allege 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 (7),1/ by creating a hostile atmosphere toward members of FOP Local 59, a minority labor organization, treating FOP members differently from majority representative PBA members, and reassigning Eckel and suspending him for ten days. ¶

On or about August 11, 1998, Eckel filed an appeal of his suspension with the Merit System Board. ¶

On May 24, 1999, a Complaint issued on the unfair practice charge and first two amendments. A third amendment was incorporated on October 5, 2000. The allegations in the October 17, 2000 amendment were ruled untimely. ¶

On November 28, 2000, the employer filed an Answer denying that it engaged in any unfair practice. ¶

On May 30 and June 20, 2000, the Commission and Merit System Board issued a Joint Order consolidating the respective matters and determining how they would be heard and decided. Middlesex Cty. Sheriff, P.E.R.C. No. 2000-102, 27 NJPER 23 (¶32001 2000). The Joint Order stated: ¶

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

The above matters are consolidated for hearing before a Hearing Examiner of the Public Employment Relations Commission designated as a Special Administrative Law Judge. The Administrative Law Judge will first offer recommended findings of fact and conclusions of law to both the Public Employment Relations Commission and the Merit System Board, disposing of all issues in controversy through a single initial decision under N.J.S.A. 1:1-18.3 and consistent with N.J.A.C. 1:1-17.8(a); and ¶

Upon transmittal of the initial decision to both agencies, the underlying record will be forwarded to the Commission to determine whether the employer violated the Employer-Employee Relations Act, including whether it did so in suspending Eckel for ten days. If the Commission finds that the suspension violated the Act, the decision and complete record will be sent to the Merit System Board for imposition of whatever specialized relief is warranted under Merit System law. If the Commission determines that Eckel would have been disciplined even absent his FOP activity, then its decision and the complete record will be sent to the Merit System Board which will determine whether Eckel's suspension was otherwise warranted under Merit System law. ¶

Hearing Examiner Jonathon Roth was appointed as a temporary administrative law judge ("ALJ"). He conducted ten days of hearing between December 4, 2000 and May 16, 2001. On April 1, 2002, he issued his Initial Decision (copy attached). ¶

The ALJ found two violations of the Act. The first involved the reassignment and ten-day suspension of then-FOP Trustee Eckel. The ALJ concluded that the Sheriff's decisions to reassign Eckel and to suspend him for ten days were motivated by Eckel's protected inquires, as an FOP representative, among fellow employees about drug testing that he believed was improper. He further concluded that the Sheriff did not prove that he would have suspended Eckel absent those inquiries for ten days; as opposed to a shorter suspension for leaving his post. The ALJ then considered the Merit System Board appeal and determined that Eckel was not guilty of certain charges, but was guilty of others. He further concluded that absent Eckel's FOP support, the Sheriff would have applied progressive discipline standards and imposed a six-day suspension. ¶

The second violation involved the reassignments of six FOP members. The ALJ found that the employer had offered no explanation for the reassignments and he concluded that the reassignments were intended to punish FOP members for a hallway meeting. ¶

The ALJ recommended dismissing the remaining allegations. He concluded that the charging parties did not prove that the Sheriff treated FOP members disparately and recommended that the remaining allegations in the Complaint be dismissed. ¶

By way of remedy, the ALJ recommended that Eckel be reassigned from the probation department post to a courtroom post, and that his suspension be reduced from ten to six days. He also recommended that Sheriff's Officers Allen, Filomeno, Castagna and Giordano be offered the opportunity to transfer to the posts they held immediately prior to their October 1997 reassignments. 2/ ¶

Note2/ Sheriff's Officers Kasha and Kijula have retired. ¶

On April 24, 2002, the employer filed exceptions. It argues that Eckel's ten-day suspension and reassignment should be upheld because he was insubordinate and disloyal. The employer further argues that even if the Sheriff did not prove these charges, Eckel's leaving his post, by itself, warranted reassignment and a ten-day suspension under progressive discipline standards. ¶

The employer also excepts to the conclusion that the reassignments of the six FOP members were in retaliation for a meeting to discuss FOP business. The employer specifically contends that the ALJ erred in finding that it had not offered explanations for the reassignments. It further contends that two officers were transferred off the first floor and two were transferred to the first floor and that it was therefore contradictory for the ALJ to have found that the reassignments were intended to break up officers from meeting on the first floor. Finally, the employer contends that the recommendation that the reassignments were in retaliation for a meeting to discuss union business is not supported by the credible evidence; it argues that such a conclusion is undercut by inconsistencies and contradictions and based solely on hearsay. ¶

On May 1, 2002, the charging parties filed untimely general exceptions that urge us to make additional findings. These exceptions do not identify that part of the Initial Decision to which objection is made or designate by precise page citation the portions of the record relied on. See N.J.A.C . 19:14-7.3(b); 1:1-18.4(b). We do not consider them. ¶

We have reviewed the record. We adopt and incorporate the ALJ's findings of fact (Initial Decision at 3-67) with the modifications specified later in our analysis. ¶

The charging parties contend that Eckel's suspension and reassignment and the reassignments of six other officers were motivated by hostility towards the officers' protected activity and thus violated 5.4a(3). The standards for assessing such discrimination claims are set forth in In re Tp. of Bridgewater, 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. ¶

Eckel's Reassignment and Suspension ¶

We begin with Eckel's reassignment and suspension. The relevant facts follow. ¶

On June 30, 1998, Eckel was assigned to a courtroom post. Generally, a sheriff's officer assigned to a courtroom must be in that courtroom whenever the judge is on the bench. Investigator Rocco Bollaro was ordered to deliver a package to Eckel's judge personally. Bollaro walked down a security corridor looking for the judge's chambers. Seeing Bollaro, Eckel came out of the courtroom and said something to the effect, "You got to pee in a cup?" The reference was to the voluntary drug tests investigators had taken to squelch a rumor about use of illicit drugs. This conversation upset Bollaro because he believed that the drug tests were nobody's business. He reported the incident to Chief Angelo Falcone. His written report quoted Eckel as saying, "That's really fucked up. They can't do that to you guys." ¶

Eckel had also asked two or three other employees about the drug tests. The ALJ found that Eckel was interested in learning about details of the testing. The Sheriff was informed about Eckel's conversations and told that Eckel had tried to insinuate that the Sheriff was acting illegally and that the FOP would never have let it happen. ¶

Eckel was summoned to a meeting with then-FOP president Randall Kijula, Chief Falcone and the Sheriff. The Sheriff was angry. He stated that Eckel would have to learn how to keep his mouth shut and threatened a transfer and suspension. ¶

On or about July 6, 1998, Eckel was reassigned from the courthouse in New Brunswick to a probation department post in Piscataway. The ALJ found that the reassignment to the isolated probation post was to keep Eckel away from as many sheriff's officers and investigators as possible. Eckel was also issued a Preliminary Notice of Disciplinary Action charging him with violations of six department rules and regulations. At the department hearing, another charge was added. ¶

On July 28, 1998, the Sheriff issued a Final Notice of Disciplinary Action sustaining all the charges and suspending Eckel for ten days. ¶

These facts show that the Sheriff knew about Eckel's inquiries about the drug tests and that the Sheriff's hostility towards those inquiries motivated Eckel's reassignment and suspension. Under Bridgewater, the key remaining question is whether, as Eckel contends, his inquiries constituted protected activity or whether, as the employer contends, they lost their protection because they were insubordinate or disloyal. ¶

N.J.S.A . 34:13A-5.3 protects employees' rights to assist employee organizations, including minority organizations. Ibid . Employee drug testing directly affects employee rights and we conclude that Eckel had a right, protected by the Act, to inquire of his fellow employees about the employer's drug testing practices. The United States Supreme Court has also recognized the great importance of employees' freedom of communication to the free exercise of organizational rights. Central Hardware Co. v. NLRB, 407 U.S . 539, 542-543 (1972). Interference with employee communication, whether directly by prohibition, or indirectly by intimidation or reassignment, may therefore violate the Act. See Sussex Cty., P.E.R.C. No. 95-33, 20 NJPER 432 (¶25222 1994); see also Phoenix Transit System, 337 NLRB No. 78, 170 LRRM 1001 (2002) (employer violated National Labor Relations Act by prohibiting employees from discussing their sexual harassment complaints among themselves); contrast Caesar's Palace, 336 NLRB No. 19, 168 LRRM 1287 (2001) (employer did not violate act by enforcing confidentiality rule during ongoing investigation of illegal drug activity where rule was necessary to ensure that witnesses were not put in danger, evidence was not destroyed, and testimony not fabricated). ¶

An employee's right to discuss terms and conditions of employment may be limited by his or her ability to interact with other employees. In this case, Eckel confronted Bollaro only after leaving his work site. If that were the only conversation that motivated Eckel's reassignment and suspension, we would have to consider the argument that Eckel's conversation with Bollaro was not protected because Eckel had no authority to leave his work site. The record indicates, however, that Bollaro was only one of a number of employees questioned by Eckel and that the Sheriff was responding to all of Eckel's conversations, and not just the one resulting from his leaving his post. ¶

The employer argues that a law enforcement employer has a significant and special interest in limiting a public employee's speech to maintain discipline, preserve confidentiality, avoid disrupting employee performance, and promote a close relationship with superiors. The cited case law, however, measures individual employee conduct against constitutional standards. None of those cases addresses the right of employees under a labor relations statute to question department actions that affect employees' terms and conditions of employment. ¶

The ALJ concluded that Eckel's inquiries and statements were protected by the Act and we agree. The right of law enforcement employees to organize into unions and grieve employer actions implicitly recognizes that employees will, at times, disagree with employer actions and seek to organize other employees to challenge those actions. There are certainly limits to such employee speech, especially in the law enforcement context, but those limits were not reached in this case. Compare State of New Jersey, P.E.R.C. No. 2001-51, 27 NJPER 167 (¶32056 2001) (exploring limits of union representative's protected conduct). Eckel's questioning of fellow employees about the drug testing that he, as an FOP representative, believed was improper may have been viewed as intrusive or obnoxious. Nevertheless, it concerned employee rights, was within the department, and did not so threaten workplace discipline, order or respect that it lost its protection. Contrast State of New Jersey, 27 NJPER at 176, 176 n.7; see also Middletown Tp. Bd. of Ed., P.E.R.C. No. 96-45, 22 NJPER 31 (¶27016 1995), aff'd 23 NJPER 53 (¶28036 App. Div. 1996), certif. den. and notice of app. dism., 149 N.J . 35 (1997) (strongly worded criticisms leveled by employee can be protected by Act and First Amendment). ¶

Eckel proved that his suspension and reassignment were motivated by the Sheriff's hostility towards his protected activities and intended to restrict his protected speech. We must therefore consider whether the employer proved that, absent those inquiries, it would still have reassigned Eckel and suspended him for ten days. As for the reassignment, no argument or evidence suggests another motive for that personnel action. As for the suspension, the ALJ found that it was motivated in part by Eckel's leaving his post, but that the employer did not prove that it would have suspended Eckel for ten days absent his inquiries about the drug testing. He found that, absent those inquiries, the Sheriff would have applied the principle of progressive discipline. The ALJ then applied that principle as part of his analysis of the appeal to the Merit System Board and found that a six-day suspension was appropriate. Under these circumstances, we will accept the ALJ's recommendation concerning a six-day suspension, but defer to the judgment of the Merit System Board if it decides a different penalty is more appropriate under the progressive discipline principle. ¶

The Reassignments of the Other Officers ¶

We next address the reassignments of the six FOP members. These are the relevant facts. ¶

Sheriff's Officer Kasha left Sheriff's Officer and PBA member Villegas alone in a courtroom with a prisoner. Villegas then observed Kasha speaking in the first floor security corridor with one or two other officers. When Kasha returned, Villegas told him that he did not appreciate what he had done. Villegas thought Kasha's response was sarcastic and Villegas eventually reported the incident to Chief Falcone. Villegas did not know the subject of Kasha's conversation and did not tell Falcone that it concerned the PBA or the Sheriff. Villegas and Falcone together spoke with the Sheriff about the incident. Within a short period of time, six FOP members were reassigned. ¶

Eckel and Kasha assert that the employer knew that a group of FOP officers met in the first floor corrider and that hostility towards that meeting prompted the employer to reassign six FOP members to prevent further meetings. We will assume that the employer did know that it was a group of FOP officers meeting, even though we have doubts about that aspect of the case. 3/ Nevertheless, under all the circumstances, we are not persuaded that hostility towards that meeting motivated the reassignments. ¶

We agree with the employer that it did give valid explanations for the reassignments. Kasha was reassigned because of the Villegas incident where he improperly left an officer alone with a prisoner. He was offered, but declined the bank run assignment so that assignment was given to Castagna. Kijula was reassigned at a judge's request to fill an opening in his courtroom. Filomeno was also reassigned at a judge's request. Allen was briefly reassigned from a fifth floor courtroom post to a juvenile holding cell post on the first floor, but returned to the courtroom post after one day. Giordano was reassigned from ¶

Note3/ Based on a perceived conflict between the Sheriff's deposition testimony and his hearing testimony, the ALJ concluded that Falcone had told the Sheriff that a group of FOP officers were seen meeting in the security corridor. We question that finding because it goes beyond any possible conflict in the Sheriff's testimony. The deposition testimony does not suggest that the Sheriff was informed that it was FOP officers who were meeting in the corridor. Both the deposition testimony and the hearing testimony consistently suggest that the Sheriff knew that officers were talking in the corridor, but not that they were FOP officers. ¶

the adult holding cell in the courthouse basement to a first floor courtroom. We see no reason on this record for doubting or displacing these reasons. Further, the theory that the employer was seeking to prevent future meetings is undercut by the fact that some of the reassignments were to first floor locations. We also see no proven correlation between the officers who talked with each other in the hallway and the officers who were reassigned. For all of these reasons, we dismiss the allegations that the reassignments were illegally motivated. ¶

The ALJ credited Kijula's testimony that Chief Falcone said that Villegas complained about a group of FOP officers meeting on the first floor. Falcone was unavailable to testify at the hearing due to illness. Falcone's alleged statement contradicts Villegas's testimony that he did not know who was in the corrider. Nevertheless, even if we accept that Falcone made the statement, given our findings about the nature of and reasons for the reassignments, we simply cannot conclude that this single statement by an unavailable witness proves that these reassignments were intended to punish FOP members for meeting in a courtroom hallway. ¶

In the absence of specific exceptions, we adopt the ALJ's recommendation to dismiss the remaining unfair practice allegations. ¶

OrderORDER ¶

The Middlesex County Sheriff is ordered to: ¶

A. Cease and desist from: ¶

1. Interfering with, restraining or coercing sheriff's officers in the exercise of the rights guaranteed to them by the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq ., particularly by reassigning and suspending Steven Eckel for questioning unit members about drug testing. ¶

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 reassigning and suspending Steven Eckel for questioning unit members about drug testing. ¶

B. Take this action: ¶

1. Reassign Sheriff's Officer Eckel from the Probation department post to a courtroom post. ¶

2. Modify the Final Notice of Disciplinary Action issued to Sheriff's Officer Eckel on or about July 28, 1998 in conformance with the Final Action of the Merit System Board. ¶

3. Compensate or credit the time records of Sheriff's Officer Eckel in conformance with the Final Action of the Merit System Board. ¶

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. 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. The remaining aspects of the case are transferred to the Merit System Board. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners Buchanan, Katz, McGlynn, Muscato and Ricci voted in favor of this decisions. None opposed. Commissioner Sandman was not present. ¶

DATED: July 25, 2002 ¶

Trenton, New Jersey ¶

ISSUED: July 26, 2002 ¶