P.E.R.C. No. 2004-3, Secaucus

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of TOWN OF SECAUCUS, Respondent, -and- Docket No. CI-H-2000-45 DAVID C. McADAM, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission dismisses a Complaint which was based on an amended unfair practice charge filed by David C. McAdam. The amended charge alleges that the Town violated the New Jersey Employer-Employee Relations Act by retaliating against the charging party for filing a grievance. Specifically, McAdam alleges that he was demoted, lost overtime opportunities, and suffered adverse working conditions as a result of his filing a grievance. The Commission concludes that McAdam did not prove that his grievance was a substantial or motivating factor in any adverse personnel actions. ¶

This synopsis is not part of the Commission decision. It has been prepared for the convenience of the reader. It has been neither reviewed nor approved by the Commission. ¶

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of TOWN OF SECAUCUS, Respondent, -and- Docket No. CI-H-2000-45 DAVID C. McADAM, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Martin Pachman, P.C., attorneys (Martin Pachman, of counsel) ¶

For the Charging Party, Oxfeld Cohen, LLC, attorneys (Arnold Shep Cohen, of counsel) ¶

DECISION ¶

On June 6 and 20, 2000 and February 7, 2001, David C. McAdam filed an unfair practice charge and amended charge against the Town of Secaucus. The charge, as amended, alleges that the respondent 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 retaliating against the charging party for filing a grievance. Specifically, McAdam alleges that he was demoted, lost overtime opportunities, and suffered adverse working conditions as a result of his filing a grievance. ¶

On January 9, 2001, a Complaint and Notice of Hearing issued. On January 22, the Town filed an Answer denying it violated the Act and claiming that the charge does not contain a clear and concise statement of the facts constituting an unfair practice. ¶

Seven days of hearing were held between March 21, 2001 and May 2, 2002. The parties examined witnesses and introduced exhibits. They waived oral argument, but filed post-hearing briefs. ¶

On April 14, 2003, Hearing Examiner Wendy L. Young recommended dismissing the Complaint. H.E. No. 2003-18, 29 NJPER 229 (¶71 2003). She found that McAdam did not prove that the Town was hostile towards his filing a grievance seeking standby pay. In addition, she found that McAdam did not demonstrate any connection between his grievance and his failure to get a promotion, the assignment of overtime, or changes in his job duties. ¶

On May 27, 2003, after an extension of time, McAdam filed numerous factual exceptions. We will address those exceptions in the course of summarizing the facts. McAdam argues that he proved that his filing a grievance motivated his demotion and other adverse personnel actions. He seeks reinstatement to his former position, back pay for lost overtime, and the posting of a notice. ¶

On June 3, 2003, the Town filed an answering brief. It argues that the exceptions do not comply with N.J.A.C . 19:14-7.3, which requires a statement as to the grounds for each exception, and must be rejected. It further argues that the Hearing Examiner’s findings of fact, based in large part on determinations of witness credibility, and her conclusions of law should be adopted. ¶

We now summarize the findings of fact and respond to McAdam’s exceptions. We note preliminarily that many of the exceptions to particular findings of fact simply cite testimony cited by the Hearing Examiner in other findings of fact. ¶

David C. McAdam has been a driver-laborer for the Town’s public works department since April 1988. His direct supervisor is Michael Gonnelli. ¶

Before 1998, the Town’s ice rink was an open air structure on an asphalt base pad. In August 1996, McAdam was promoted to the position of recreational facilities maintenance coordinator/laborer-driver and given primary responsibility for maintaining the rink. He received a $4000 annual salary increase. Each year, he was required to convert the pad from a tennis court into an ice rink in the fall and back again in the spring. He worked exclusively at the rink about 16 weeks per year. He was assisted by part-time recreation department employees. ¶

In 1998, the Town was awarded a grant to cover the cost of partially enclosing and lighting the rink, thereby permitting more and different uses for the rink. Consequently, the recreation department recommended hiring a full-time recreation facilities maintenance worker. The Town sought a person with welding and fabricating experience. The position was posted and McAdam, who does not have welding skills, did not apply. Gary Voss applied for the position and was hired. 2/ Voss spends time in the morning and afternoon at the rink and then performs other duties throughout the Town. ¶

McAdam trained Voss on how to construct and deconstruct the rink. The Town then purchased a new rink and in fall 1998, McAdam and others worked with Voss to set it up. Once the new rink was installed, Gonnelli did not include rink detail in McAdam’s daily assignments. He last reported to the rink in March 1999. McAdam did not question the change in assignment or why he was being paid for rink work he no longer performed. ¶

Most overtime is worked through a standby system.3/ Employees are paid a certain amount for being on standby and premium pay if required to work. Employees are selected for standby duty on a rotational basis. Some employees are also paid overtime pay for working through their lunch break. ¶

On the Friday before the 1998 Labor Day weekend, McAdam was next on the standby list. Two other employees wrongfully switched standby assignments in violation of the collective negotiations agreement. McAdam was thereby denied the standby assignment that was rightfully due him. Gonnelli was not on duty when the switch occurred. Supervising Foreman Snyder was acting superintendent and was aware of the switch, but did not require proper documentation. ¶

McAdam grieved the denial of overtime compensation. In March 1999, Gonnelli, McAdam, a Teamsters delegate and a shop steward met over the grievance. McAdam wanted the Town to acknowledge wrongful action and pay full backpay. The Town offered to pay McAdam half the overtime that the two other employees had received and to give him the next standby opportunity, without any fault being assigned to any party. McAdam rejected any settlement offer that did not include a concession by the Town that supervision was at fault. The grievance was then scheduled for arbitration on September 29, 1999. ¶

McAdam is generally characterized as a good, conscientious worker. However, Supervising Foreman Snyder reported to Gonnelli that he noticed a change in McAdam’s outlook and attitude. Gonnelli also concluded that McAdam had a problem working with others, since co-employees had asked not to work with him. ¶

On July 20, 1999, Gonnelli asked McAdam to meet with him. Gonnelli told McAdam that it seemed that he was dissatisfied with his job. McAdam replied that he was not. Gonnelli reported to McAdam stories he had heard about McAdam “bashing” him. The 15 minute meeting ended with McAdam being upset and denying the allegation. ¶

On August 4, 1999, McAdam complained to Town Administrator Iacono that Gonnelli had harassed him. Gonnelli wrote a response. Additional correspondence was sent back and forth. No further action was taken by either side. 4/ ¶

McAdam asked fellow employee Joseph Hartwig to testify on his behalf at his grievance arbitration hearing. The Hearing Examiner found that Gonnelli did not threaten or direct Hartwig not to testify. We accept that finding and her decision not to credit Hartwig’s testimony, to the extent it conflicted with Gonnelli’s. The Hearing Examiner also found that then-Councilman Elwell did not tell Hartwig not to testify at the hearing. We accept her credibility determinations. 5/ Hartwig did not attend the arbitration, but his written statement was read into the record. ¶

On December 4, 1999, McAdam received the arbitrator’s award denying his grievance. ¶

Also in December, McAdam’s rink position came to Administrator Iacono’s attention during the budget preparation process. The chief financial officer had questioned why McAdam was receiving a stipend. He was told about McAdam’s additional rink coordinator title, but was also told that McAdam had not been at the rink for over a year. Gonnelli explained that the Town had hired Voss. The chief financial officer then spoke to the Town’s labor counsel about how to proceed and thereafter, the Town passed a resolution eliminating McAdam’s rink coordinator position. His salary was reduced by $4000 per year effective January 1, 2000. ¶

At McAdam’s request, he, a shop steward and Gonnelli met to review his personnel file. A December 1998 memorandum from Gonnelli and six other reprimands were destroyed. ¶

McAdam testified that his duties changed from the time he filed his grievance in September 1998 until June 2000, when this unfair practice charge was filed. 6/ Specifically, he claimed that he was assigned menial duties with non-union workers which limited his ability to earn lunchtime overtime. The Hearing Examiner concluded that McAdam’s overall overtime hours were above average after he filed his grievance. In particular, she found that between October and December 1998, McAdam was one of the top overtime earners; in 1999 he was one of the top ten earners; in 2000, he had a significant decease in overtime because he declined standby overtime on Election Day 2000 7/ ; and for the first half of 2001, he earned at least as much overtime as the average employee. The Hearing Examiner did not definitively resolve the dispute over McAdam’s lunchtime overtime. She did, however, conclude that the charging party did not show any connection between his grievance and the overtime he received. We accept her conclusion that the record does not establish that after he filed his grievance, McAdam suffered retaliation in the form of decreased overtime opportunities. In particular, we note that the exhibits detailing McAdam’s lunchtime overtime do not cover the period before he filed his grievance, and it is therefore not possible to use those exhibits to ascertain whether his assignments and lunchtime overtime decreased after he filed his grievance. ¶

Hartwig and Elwell had another conversation in June 2000. Hartwig testified that Elwell told him to stay away from McAdam and not to get into trouble. Elwell denied threatening Hartwig. The Hearing Examiner found Hartwig’s testimony to be inconsistent, unclear and unconvincing. We have no reason to second-guess her credibility determination. ¶

In September 2000, the Teamsters president, Iacono and McAdam met. Iacono told McAdam that Gonnelli still felt that McAdam hated him. 8/ McAdam denied it and Iacono told McAdam to communicate that to Gonnelli. McAdam told Iacono that he was not getting his fair share of overtime. Iacono responded that he had looked at the numbers and it appeared that overtime was being distributed fairly, but that he would look at it again. McAdam testified that, in addition to the matters testified to by Iacono, Iacono told him that if he wrote to Gonnelli dropping all charges, he would be put back in the mainstream with regard to assignments and overtime and would restore Hartwig’s week suspension; and that if another promotion arose, McAdam could apply and would be considered. The Teamsters president did not testify and the Hearing Examiner drew an adverse inference. She did not credit McAdam’s testimony to the extent he described matters that Iacono did not describe. We have no basis to disturb that determination. ¶

After the meeting, Iacono received overtime information from Gonnelli. That information indicated that some employees got more overtime than McAdam, but that the majority got less. The information was submitted to Local 11. No grievance was filed. 9/ ¶

Under In re Tp. of Bridgewater, 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. 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. ¶

Based in large part on credibility determinations, the Hearing Examiner found that the charging party did not prove that his grievance was a substantial or motivating factor in any adverse personnel actions. She found no showing of hostility to his grievance. We accept her findings. ¶

McAdam’s demotion was unrelated to his grievance. In fact, the decision to hire a full-time employee with welding skills to staff the ice rink was made before the charging party filed his grievance. The decision to eliminate his stipend was made because the chief financial officer questioned why McAdam was being paid for work he did not perform. ¶

The Hearing Examiner did not credit Hartwig’s testimony that Gonnelli and the Town administrator tried to intimidate him out of testifying on McAdam’s behalf. The Hearing Examiner also noted that even if Hartwig had testified, there is no evidence that the arbitration would have gone in McAdam’s favor. ¶

As for the loss of overtime opportunities, the charging party did not prove that the Town unlawfully changed his job duties or denied him overtime because of his grievance. ¶

The charging party’s exceptions to the Hearing Examiner’s analysis center on his disagreement with her credibility determinations. Having found no basis to overturn those determinations, we likewise find no basis to reject her legal conclusions. Accordingly, we adopt the recommendation to dismiss the Complaint. ¶

OrderORDER ¶

The Complaint is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

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

DATED: July 24, 2003 ¶

Trenton, New Jersey ¶

ISSUED: July 25, 2003 ¶

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.” The February 7, 2001 amendment withdrew 5.4a(4), (5) and (7) allegations. ¶

3/ This finding is not contradicted by exhibits showing the total amount of overtime worked and the amount of lunchtime overtime worked (CP-15 and R-21) as suggested by McAdam. ¶

4/ McAdam appears to except to the Hearing Examiner’s finding that some employees complained about working with him. Gonnelli testified that at least six employees had complained to him. Three did not testify. The three who did stated that they had not complained. The Hearing Examiner did not address this arguable conflict in testimony. Accordingly, we do not rely on this finding. We note as well that Supervising Foreman Snyder testified that many employees expressed that they did not want to work with McAdam. Yet he could not name any who had complained. Accordingly, we do not adopt that finding. We add findings that Gonnelli’s response to McAdam’s letter charging harassment was placed in McAdam’s personnel file [6T70-6T71] and that Town Administrator Iacono testified that Gonnelli at least twice told him that he wanted to sit down with McAdam and a shop steward to discuss McAdam’s attitude and morale. ¶

7/ McAdam has shown that the average number of overtime hours worked in 2000 was 99.7, that he worked 67.5 overtime hours, and that had he worked 7.5 hours of overtime on Election Day, his total overtime hours would have been 75 hours, 24.7 hours below the average. We modify the Hearing Examiner’s findings of fact accordingly. ¶

8/ McAdam excepts to the finding that he disliked Gonnelli. We modify finding 28 accordingly. ¶

9/ Any exceptions not addressed above are rejected. ¶