It appearing that the allegations of the above charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on March 20, 1978.

Pursuant to the Complaint and Notice of Hearing, a hearing was held on May 2, 1978 in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present evidence and argue orally. Both parties argued orally at the conclusion of the hearing. There were no post-hearing briefs filed by either party.

An unfair practice charge having been filed with the Commission, a question concerning an alleged violation of the Act, as amended, exists and, after hearing and after consideration of the oral argument of the parties, the matter is appropriately before the Commission by its designated Hearing Examiner for determination.

Upon the entire record, the Hearing Examiner makes the following:

2. The Distillery, Wine and Allied Workers International Union is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

3. Joseph Stracuzzi was employed by the Authority as a plant operator on July 8, 1974.

4. Early in April 1977 Mr. Stracuzzi was instrumental in setting up a first meeting between several employees of the Authority and two representatives of the union, one of whom was George J. Orlando, the General Secretary-Treasurer. At a second meeting, about two weeks later, a majority of the employees were present, including Mr. Stracuzzi, union authorization cards were circulated and signed by those present, and on April 25, 1977 Mr. Orlando wrote a letter to Mr. Jerome A. Frederick, Superintendent of the Authority, stating that the Union represented a majority of its employees and demanding recognition (CP-1).

5. The first knowledge of Mr. Stracuzzi = s activities on behalf of the Union, attributable to the Authority, would have occurred upon the receipt of a letter dated May 5, 1977 from Mr. Orlando to Mr. Frederick wherein Mr. Stracuzzi is noted as receiving a copy (CP-3).

6. After some preliminary exchanges between the Union and the Authority with respect to resolving the Union = s request for recognition, a petition was filed by the Union with the Commission, Docket No. RO-77-193. An election was conducted on August 3, 1977, at which Mr. Stracuzzi was the observer for the Union, and the Union was certified on August 11, 1977.

7. After the certification of the Union, three employees, Mr. Stracuzzi, Terry Firestone and John Romanowski were designated as the negotiating committee and as temporary stewards on their respective shifts. These names and designations were posted with the approval of Mr. Frederick, the Superintendent. Mr. Stracuzzi wrote a notice of a general membersip meeting of the Union to be held September 13, 1977, which was likewise approved for posting by Mr. Frederick (Tr. 21-24; CP-6).

8. After complaints by contractors working on the premises of the Authority that their trailers had been broken into and that tools were missing, a stakeout was established by the Linden Police. It was subsequently reported to Mr. Frederick by the Police that (1) Mr. Stracuzzi was A caught red-handed @ in one of the trailers; (2) he was in possession of keys for all of the other trailers; and (3) a search of his home had disclosed a A basket of tools @ , which were identified by the contractors and their employees as having been their property. Mr. Stracuzzi was arrested on October 7, 1977. (Tr. 71-73; 51).

9. Following the arrest of Mr. Stracuzzi, Mr. Frederick reported the foregoing events to the members of the Authority and on the same day, October 12, 1977, Mr. Frederick wrote a letter to Mr. Stracuzzi suspending him without pay pending the outcome of legal proceedings against him (CP-7). The action of suspension without pay was ratified by the Authority at its next meeting on the fourth Wednesday of October 1977 (Tr. 73, 74).

10. Under date of November 7, 1977, Mr. Orlando wrote to Mr. Frederick advising him that Mr. Stracuzzi had been found not guilty as charged and requested Mr. Frederick to reinstate Mr. Stracuzzi as soon as practicable (CP-8).

11. Between the October and November meetings of the Authority Mr. Frederick obtained information from Mr. Tomaszewski, the attorney for the Authority, that Mr. Stracuzzi had, prior to his employment with the Authority, been found in possession of burglary tools and that the City of New York had a warrant out for his arrest for armed robbery (Tr. 74, 75). ^3/ An examination by Mr. Frederick of Mr. Stracuzzi = s employment application, dated July 3, 1974, indicated that there was no response to the question: A Have you ever been arrested? @ (R-1).

12. At the November 23, 1977 meeting of the Authority the members thereof decided to terminate Mr. Stracuzzi, notwithstanding his having been found not guilty, because of the fact that Mr. Stracuzzi had been A caught red-handed @ , that he had a prior record and that he had failed to respond on his employment application (Tr. 74-77, 92). Based on a plea by Mr. Stracuzzi = s wife the members of the Authority decided to pay Mr. Stracuzzi during the period of his suspension (Tr. 77).

13. Mr. Frederick credibly testified that he had advised Mr. Stracuzzi a year earlier to get together and form a union. He also testified that he was aware of Mr. Stracuzzi = s union activities along with other employees of the Authority, including Mr. Romanowski. Mr. Frederick testified he was not aware that Mr. Stracuzzi was the A prime mover @ . To the contrary, he testified that he thought Mr. Romanowski had A spear headed @ the Union and that he had most of his contact with respect to the Union with Mr. Romanowski (Tr. 78, 79, 87, 88).

14. Mr. Andrew Stoffa, an Authority member, testified credibly that at the November 23, 1977 Authority meeting he had no knowledge of Mr. Stracuzzi = s union activities and was under the impression that it was Mr. Romanowski who was involved with the union (Tr. 93).

15. Mr. Frederick wrote two letters of recommendation for Mr. Stracuzzi requesting that he be permitted to take a State licensing examination as a plant operator, the first on May 19 and the second on September 8, 1977 (R-2, R-3).

16. As of the date of hearing, no collective negotiations agreement had been consummated (Tr. 20). Thus, there is no issue of deferral to arbitration.

then Terminated Mr. Stracuzzi

The Commission in Haddonfield Borough Board of Education, P.E.R.C. No. 77-31, 3 NJPER 71 (1977) adopted the following standard in cases alleging a violation of subsection (a)(3) of the Act:

...A violation of N.J.S.A . 34:13A-5.4(a)(3) should be found if it is determined that the public employer = s discriminatory acts were motivated in whole or in part by a desire to encourage or discourage an employee in the exercise of rights guaranteed by the Act or had the effect of so encouraging or discouraging employees in the exercise of those rights.

Application of this two-fold standard will normally involve a preliminary showing by the Charging Party of two essential elements. There must be proof that the employee was exercising the rights guaranteed to him by the Act, or that the employer believed said employee was exercising such rights, and proof that the public employer had knowledge, either actual or implied, of such activity.

...Discriminatory acts by employers, even if only partly motivated by an employee = s union activities, or acts that would discourage exercise of such rights, would clearly tend to frustrate the express intent of the Act.

Furthermore, the two-fold test upholds the employer = s legitimate prerogative to discharge, suspend or refuse to promote employees for reasons unrelated to union activities. The employer may take such action for any cause or no cause at all as long as it is not retaliatory . It is the Charging Party that must prove its case by the preponderance of the evidence (citing N.J.A.C. 19:14-6.8). (Emphasis supplied in part) (3 NJPER at 72)

See also, City of Hackensack , P.E.R.C. No. 77-49, 3 NJPER 143 (1977), appeal pending App. Div. Docket No. A-2546-76.

In Haddonfield, supra , the Commission agreed with the Hearing Examiner in that case that the Charging Party had failed to meet its burden of proof by a preponderance of the evidence. So, too, must the Hearing Examiner conclude in the instant case.

The foregoing Findings of Fact demonstrate amply that Mr. Stracuzzi was engaged in protected activities within the meaning of N.J.S.A. 34:13A-5.3^4/ at least since early April 1977. The Authority is charged with first knowledge of Mr. Stracuzzi = s activities on behalf of the Union upon receipt of a letter dated May 5, 1977 from Mr. Orlando to Mr. Frederick wherein Mr. Stracuzzi is noted as receiving a copy of the said letter (see Findings of Fact Nos. 4 and 5, supra).

As indicated in Findings of Fact Nos. 6 and 7, supra , Mr. Stracuzzi was the observer for the Union at the election on August 3, 1977 and was also one of three members of the negotiating committee and a temporary steward. Mr. Frederick had knowledge of Mr. Stracuzzi = s capacity in these respects.

Thus, the Union has clearly met its preliminary showing that Mr. Stracuzzi was exercising rights guaranteed by the Act and that the employer had, in this case, actual knowledge of such activity.

As noted, in the above-quoted portions of the decision of the Commission in Haddonfield , the test adopted by the Commission for subsection (a)(3) discrimination clearly recognizes the prerogative of the employer to suspend and/or discharge A ...for reasons unrelated to union activities @ and, further, that the employer A ...may take such action for any cause or no cause at all as long as it is not retaliatory... @

Mr. Stracuzzi = s problems with the Authority arose solely because of his having been arrested by the Linden Police on October 7, 1977. As indicated in Finding of Fact No. 8 he was, following a stakeout, A caught red-handed @ in a contractor = s trailer while in possession of keys for other trailers, and a search of his home resulted in the recovery of tools which were identified by the contractors and their employees as the property of the latter. It is true that Mr. Frederick = s letter of suspension of October 12, 1977 (CP-7) did indicate that the initial suspension was A pending the outcome of legal proceedings against you. @ It is likewise true that Mr. Orlando wrote Mr. Frederick on November 7, 1977 stating that Mr. Stracuzzi had the previous week been found A not guilty as charged @ (CP-8).

However, the Authority by the time of its November 23, 1977 meeting, had before it the initial arrest of October 7 coupled with the additional information that Mr. Stracuzzi had, prior to his employment with the Authority, been found in possession of burglary tools and that the City of New York had a warrant out for his arrest for armed robbery. Also, the Authority, through Mr. Frederick, had brought to its attention the fact that Mr. Stracuzzi = s employment application was blank in response to the question as to whether or not he had ever been arrested. Mr. Stracuzzi admitted his prior record on cross-examination. By way of mitigation the Union introduced two favorable reports from his probation officer. (CP-10, CP-11).

In finding absolutely no evidence of anti-union animus (Findings of Fact Nos. 13, 14 & 15) the Hearing Examiner takes especial note of the testimony of Mr. Frederick and Mr. Stoffa that they believed that Mr. Romanowski was the principal union activist. Also, Mr. Stracuzzi acknowledged on cross-examination that no other employees of the Authority, who had engaged in union activities, had been fired or suspended. (Tr. 50).

The Union, having failed to prove any anti-union animus by the Authority against Mr. Stracuzzi, and further, having failed to prove any causal connection between Mr. Stracuzzi = s union activities and his suspension and discharge, the Hearing Examiner must recommend dismissal of the Complaint.

____________________________
Alan R. Howe

Hearing Examiner

DATED: June 28, 1978
Trenton, New Jersey
1/ As amended at the hearing.
2/ This subsection prohibits employers, their representatives or agents from: A (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. @
3/ Mr. Stracuzzi admitted his prior record on cross-examination (Tr. 51-53).
4/ A Except as hereinafter provided, public employees shall have, and shall be protected in the exercise of, the right, freely and without fear of penalty or reprisal, to form, join and assist any employee organization or to refrain from such activity... @