P.E.R.C. No. 2003-40, Somers Point

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CITY OF SOMERS POINT, Respondent, -and- Docket No. CO-H-2001-227 MAINLAND PBA #77 and APRIL VAN DALEY, Charging Parties. ¶

AppearancesAppearances: ¶

For the Respondent, Roger C. Steedle, P.A. attorneys (James F. Ferguson, of counsel) ¶

For the Charging Parties, Selikoff & Cohen, P.A., attorneys (Steven R. Cohen, of counsel) ¶

DECISION ¶

On February 21, 2001, Mainland PBA Local #77 and April Van Daley filed an unfair practice charge against the City of Somers Point. The charge alleges that the employer violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., specifically 5.4a(1) and (3), 1/ by reprimanding and ¶

Note1/ These provisions prohibit public employers, their representatives or agents from: "(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act. (3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this act." ¶

suspending Van Daley in retaliation for her filing a grievance seeking a shift change to accommodate her National Guard training. ¶

On December 5, 2001, a Complaint and Notice of Hearing issued. On January 10, 2002, the employer filed an Answer denying that it violated the Act and setting forth several affirmative defenses. The City claimed that Van Daley asserted that her actions were not meant to be a "grievance" and, thus, the discipline imposed did not implicate a protected right. The City further claimed that if Van Daley's actions are deemed to be a grievance, then she violated the contractual grievance procedure and the department's chain of command. Finally, the City contended that the charge is untimely. ¶

Hearing Examiner Jonathon Roth denied the City's request that he stay the unfair practice litigation pending resolution of a related Superior Court matter. On March 1, 2002, we denied special permission to appeal that ruling. P.E.R.C. No. 2002-45, 28 NJPER 148 (¶33049 2002). ¶

On March 11, 2002, the Hearing Examiner conducted a hearing. The parties examined witnesses, introduced exhibits, and filed post-hearing briefs. ¶

On August 9, 2002, the Hearing Examiner issued his report and recommendations. H.E. No. 2003-3, 28 NJPER 358 (¶33130 2002). He found that the charging parties proved both retaliation and interference with protected rights. He recommended rescission of all discipline imposed and expungement of references to these disciplinary actions from Van Daley's work record. ¶

On September 9, 2002, the City filed exceptions. It argues that the Hearing Examiner erred in his factual findings by: (1) quoting selectively from a July 14, 2000 memorandum; (2) concluding that this memorandum was not disrespectful; (3) not finding that the leave denial was because Van Daley did not properly complete a Request form; (4) not considering that Van Daley's demands were based on inapplicable statutes and regulations; (5) quoting selectively from the Chief's Report dated August 23, 2000; and (5) not finding that the two-day suspension for insubordination reflected progressive discipline. The City also asserts that the Hearing Examiner erred in his analysis by: (1) ruling irrelevant Van Daley's deposition testimony; (2) inadequately considering the department's concern over its management rights; and (3) failing to find that Van Daley's manner and tone demonstrated insubordination. ¶

We have reviewed the record. We incorporate the Hearing Examiner's findings of fact (H.E. at 3-12) and note that the Hearing Examiner attached as exhibits Van Daley's July 14, 2000 memorandum and a July 20, 2000 Chief's Report from Captain Salvatore Armenia to Chief Orville F. Mathis. We reject the City's factual exceptions. The City asserts that the findings were incomplete because they did not quote more fully from certain exhibits. Those exhibits are part of the record and must be considered by the Hearing Examiner. A Hearing Examiner need not, however, quote the entirety of all relevant documents in preparing a report. The Hearing Examiner's careful analysis shows that he fully considered the exhibits cited by the employer. ¶

On July 14, 2000, Van Daley submitted a memorandum to Chief Mathis and Captain Armenia explaining that "despite previous practice," she would no longer use her vacation or holiday time to attend Air National Guard's Unit Training Assemblies (UTAs). She cited a statute and regulation allegedly entitling her to be paid. The letter concluded by thanking them for their attention and referring them to her attorney should they have any questions. ¶

Mathis and Armenia discussed the memorandum. Mathis asked Armenia if the memorandum was a grievance. Armenia responded that he did not know. ¶

On July 15, 2000, Van Daley submitted a request for authorized leave. ¶

Soon after receiving the July 14 memorandum, Armenia began a disciplinary investigation. As part of this investigation, he interrogated other employees about Van Daley's conversations with them concerning leave time and he directed them to prepare reports. ¶

On July 18, 2000, Armenia and Van Daley discussed her memorandum. Armenia told Van Daley that if she wished to be rescheduled around her UTAs, she had to file a written request. He also ordered her to submit a chief's report explaining why she failed to follow the chain of command and why she violated the grievance procedure. Van Daley responded that her memorandum was not a grievance and that it was only a request for a schedule change when she had Guard duty. ¶

Van Daley complied with Armenia's order by submitting a formal request that she be given a leave of absence when her work schedule and Guard schedule conflicted. She also submitted a Chief's Report explaining that her memorandum was merely a letter to explain her rights as a Guard member. The letter was meant to prevent any misunderstanding and was not a grievance. ¶

On July 20, 2000, Armenia submitted a Chief's Report to Mathis. He wrote that Van Daley's "grievance" was disrespectful and insolent and he recommended disciplinary action. He cited her conversations with other employees in which she said she was going to file a grievance. ¶

In a July 24, 2000 Chief's Report, Armenia denied Van Daley's schedule change request. Mathis had directed Armenia to deny the request. ¶

Van Daley spoke to Myron Plotkin, her union representative. On July 26, 2000, Plotkin sent a letter to Armenia characterizing his denial of Van Daley's schedule change as "blatantly illegal." He also wrote that: ¶

any forms of reprisals, penalties, retribution, discrimination, etc., arising from Officer Van Daley's exercising her legal rights, including but not limited to her request for a schedule change and/or the issuance of this letter will be viewed as a very serious matter and handled through the appropriate authorities. ¶

The City's attorney responded that the City had lawfully denied Van Daley's request. ¶

On August 23, 2000, Mathis placed a Chief's Report in Van Daley's personnel file recommending disciplinary action. Van Daley had informed Mathis that her July 14 memorandum was not intended to be a grievance and that he need not "process" it. He nevertheless wrote that the charges stemmed from Van Daley's "written letter in grievance form." He sustained charges of: failure to follow the grievance procedure; failure to follow the chain of command because Van Daley's memorandum bypassed a step of the chain of command; and insubordination because Van Daley had indicated that she intended to violate department policy regarding time off for UTAs. He imposed written reprimands for violating the grievance procedure and the chain of command and a two-day suspension for insubordination. ¶

An employer violates 5.4a(1) if its 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). The Hearing Examiner found that the City violated 5.4a(1) because its response to Van Daley's July 14, 2000 memorandum tended to interfere with, restrain and coerce Van Daley in exercising her statutory right to file grievances concerning her working conditions. The City argues that the Hearing Examiner should have considered Van Daley's deposition testimony in a related matter and given greater consideration to its concern over its management rights. ¶

We believe that disciplining Van Daley for informing the City that she would no longer be using vacation or holiday time for UTAs tended to interfere with her protected right to "grieve" the City's application of certain statutes and regulations to her situation. Van Daley's memorandum was protected. Even if it was not intended to be a grievance, the employer treated it as such and disciplined her for failure to properly follow the grievance procedure. In his report recommending discipline, Mathis specified that the charges stemmed from her memorandum in "grievance form." ¶

That Van Daley may have been wrong in her interpretation of her rights does not entitle the City to discipline her in retaliation for what the City believed was a grievance questioning its interpretation of her rights. Essex Cty., P.E.R.C. No. 95-21, 20 NJPER 385 (¶25195 1994) (fact that employee did not have right to union representation during meeting did not mean that employee could be discharged for requesting representation). Van Daley ultimately recognized that the City viewed her memorandum as confrontational and disrespectful and indicated that she regretted sending it. But that assessment of reality does not undo the fact that the City acted to interfere with her right to question the application of the leave policy. ¶

Van Daley's deposition testimony is irrelevant. Her subjective regret about her and her union representative's sending memoranda with inaccurate information that ultimately led to her discipline does not answer whether that activity was protected or whether the discipline tended to interfere with her right to engage in that activity. The test for determining whether 5.4a(1) has been violated is an objective one based on whether an employer's action tends to interfere with employee rights, not a subjective one based on an employee's actual state of mind. Commercial Tp. Bd. of Ed., P.E.R.C. No. 83-25, 8 NJPER 550 (¶13253 1982), aff'd 10 NJPER 78 (¶15043 App. Div. 1983); New Jersey Sports & Exposition Auth. ¶

We appreciate that the City has a legitimate concern that grievances be filed at the proper level of the chain of command. But we cannot find a legitimate business justification for reprimanding and suspending Van Daley for her memorandum about leave time. A simple response that she correct her error would have sufficed and would not have tended to send a message that questioning policies on terms and conditions of employment would have serious consequences unless done absolutely correctly. ¶

Finally, the City argues that the charge of insubordination is established by the manner and tone of Van Daley's actions. It notes that her memorandum begins with "despite past practice" and that it was followed by a "confrontational and even threatening letter from her Union Representative." We decline to find that the phrase "despite past practice" evidences insubordination that outweighs an employee's right to question an employer's leave policy. And we reject the assertion that an employee can be disciplined for insubordination based on the written words of her union representative. We respect a police department's right to maintain departmental order and discipline. These internal communications, however, do not appear to challenge that right and they come within the ambit of protection afforded to public employees by the Legislature. ¶

The Hearing Examiner recommended rescission of all discipline, expungement of those disciplinary actions from Van Daley's record, and making Van Daley whole for losses of salary and benefits. We adopt these remedial recommendations. ¶

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 having issued an appropriate remedy, we need not reach the question of whether the reprimand was motivated by hostility to Van Daley's protected activity. Any remedy for that violation would be the same. Camden Cty. Sheriff, P.E.R.C. No. 2001-55, 27 NJPER 184 (¶32060 2001); 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). ¶

OrderORDER ¶

The City of Somers Point is ordered to: ¶

A. Cease and desist from interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act, particularly the right of employees to file grievances or otherwise address with the employer issues regarding terms and conditions of employment without fear of interference, restraint or coercion. ¶

B. Take this action: ¶

1. Rescind all discipline meted out to April Van Daley pertaining to her July 14, 2000 memorandum. ¶

2. Expunge from Van Daley's records all notices and references to discipline imposed as a consequence of her July 14 memorandum. ¶

3. Promptly reimburse Van Daley for all losses of salary and benefits imposed as a consequence of such discipline plus interest pursuant to R. 4:42-11. ¶

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. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners Buchanan, DiNardo, Mastriani, Ricci and Sandman voted in favor of this decision. None opposed. Commissioner Katz was not present. ¶

DATED: December 19, 2002 ¶

Trenton, New Jersey ¶

ISSUED: December 20, 2002 ¶