It appearing that the allegations of the charge, if true, might constitute an unfair practice within the meaning of the Act, a Complaint and Notice of Hearing was issued on December 17, 1975. Hearings were held before the undersigned on March 9, 1976 and April 5, 1976 at which times all parties were given an opportunity to examine witnesses, to present evidence and to argue orally. Briefs were submitted subsequently by all parties, all of which were filed by June 31, 1976. ^2/ Upon the entire record in this proceeding, the Hearing Examiner finds:

1. Wayne Township is a Public Employer within the meaning of the Act and is subject to its provisions.

2. Wayne PBA, Local No. 136, is an employee representative within the meaning of the Act, and is subject to its provisions.

3. An Unfair Practice Charge having been filed with the Commission alleging that Wayne Township has engaged or is engaging in unfair practices within the meaning of the Act, as amended, a question concerning alleged violations of the Act exists and this matter is appropriately before the Commission for determination.

In September of 1973, negotiations began for the 1974 collective bargaining agreement between the Township and the PBA. No agreement was reached and collective negotiations were suspended in January, 1975. In February, 1975, the Township Council adopted, by ordinance, the PBA position on 1974 salaries and fringe benefits for police officers.

The Township Mayor brought suit in Superior Court challenging the validity of the ordinances and the PBA intervened in June on the side of the Council. The complaint was dismissed and the ordinances were ordered enforced. In July the trial court denied the Mayor = s application for a stay pending appeal. On August 21, 1975, the Appellate Division denied the Mayor = s application for a stay pending appeal of the case.

Some five days later, on August 26, 1975, in a memorandum from Acting Chief of Police Peter Daly to Township Business Administrator Jack Harman, Culmone = s transfer (along with that of seven other officers) was officially requested. On August 27, 1975, Culmone was notified of his transfer effective September 1, 1975 from detective to patrolman.

The PBA alleges that Culmone = s transfer was violative of ' 5.4(a)(3) of the Act for it was motivated in whole or in part by the Township = s desire to retaliate against Culmone for his union activities. They argue that the transfer is in effect a demotion.

Culmone testified that he had been rated as an average detective and when he first received word of the transfer, he tried to speak to Chief Daly in order to ascertain reasons for the transfer. An appointment was made with the Chief but when Culmone went to his office accompanied by a PBA officer, Daly refused to meet with him unless Culmone was alone. Culmone did not meet with the Chief by himself. Consequently, he never received any reasons for the transfer.

Culmone = s testimony, which was uncontested, indicated that Mayor Miller was well aware of Culmone = s involvement in the Mayor = s litigation against the Council. Shortly after the PBA intervened in the Mayor = s suit against the Township Council and won an order directing Mayor Miller to show cause why the ordinances should not be enforced, Culmone had the following conversation with the Mayor in the hall at police headquarters: [Mayor]: A You ought to be smiling now, Culmone. @ [Culmone]: A Yes, I am. @ [Mayor]: A Well, you won the war but the battle isn = t over yet. @ ^3/

The Township, however, denies that the transfer was discriminatory or motivated by anti-union animus, and claims the transfer was made after Culmone = s performance and attitude as a detective had been judged less than satisfactory by his superior officers, and it was hoped that the transfer would increase the overall efficiency of the Police Department.

* * *

The Commission adopted standards for the application of ' 5.4(a)(3)^4/ in City of Hackensack, H.E. No. 77-1, 2 NJPER 232 (1976) and In re Haddonfield Board of Education, P.E.R.C. No. 77- 36, 2 NJPER ___ (1977). The Commission will find an (a)(3) violation if a 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 encouraging or discouraging employees in the exercise of those rights. The Commission adopted this rationale stating discriminatory acts by employers which discourage the exercise of such rights [even if only partly motivated by an employee = s union activities or acts], would clearly tend to frustrate the express intent of the Act. Application of this twofold 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 or her by the Act, or that the employer believed said employee was exercising such rights, and there must be proof that the public employer had knowledge, either actual or implied, of such activity.

* * *

Knowledge of Culmone= s longstanding positions as PBA state delegate and member of the Local PBA negotiating team was freely admitted by the Township. Culmone claimed to have been the chief spokesman for the PBA in its negotiating sessions with the Township which began in September, 1973 and in the litigation which followed. Business Administrator Jack Harman testified that both he and Mayor Miller had been in face-to-face negotiations across the bargaining table from Culmone on several occasions. Harman denied that Culmone was the chief negotiator for the PBA but admitted Culmone took an active and vocal role. ^5/ He further denied knowledge that Culmone motivated the PBA to intervene in the litigation between the Mayor and the Township Council.

* * *

Throughout the hearings and in its brief, the Township maintained that Culmone = s transfer was nothing but a routine reassignment, that it was not a demotion in any legal sense of the word, nor was it considered such by the parties involved. But Culmone testified that, in the Police Department, transfer into the Detective Bureau is considered a promotion. The notice of his transfer into the Bureau indicated that he was A elevated @ to detective status, and would receive a $600 per year pay differential. ^6/ On the same day that Culmone received notice of his transfer back to patrol, Patrolman Cunniffe was transferred into the Detective Bureau. Acting Chief Daly = s memo to him included: A Congratulations on your elevation to the Detective Bureau. @ ^7/

Culmone testified that it was difficult to explain to the family a transfer from detective to patrol status. Harman admitted a certain loss of prestige accompanied such a transfer and Daly admitted that the officers considered it a demotion. Evidence was introduced to show that the Township Council very definitely considered such a transfer to be a demotion which should be accompanied by good reasons. ^8/

The undersigned is satisfied that a transfer from detective to patrol status in the Wayne Police Department is, in the minds of all concerned, considered a demotion. This makes the transfer a change in a condition of employment and accordingly, if it was motivated even in part by an intent to discourage protected union activities, would constitute an unfair practice.

* * *

The Township maintains that the Business Administrator, the Mayor, and the Chief A agreed that there was a need to strengthen supervision in certain areas of the Department and this was the primary reason leading to [Culmone = s] transfer. @ ^9/

Lieutenant Aeillo, Culmone = s superior in the Detective Bureau, testified that it was he who had requested Culmone = s transfer to the Detective Bureau in 1973, and that Culmone was an average detective, good when he wanted to be, sometimes lazy, but never disobeyed an order. ^10/ Aeillo testified that several days prior to issuance of the August 27, 1975 memorandum announcing Culmone = s transfer,^11/ he was ordered by his Captain, Captain Hazelwood, to take four men out of the Detective Bureau. Aeillo claimed Hazelwood was acting on orders from the Chief because patrols were short and more road supervision was needed. Aeillo related that he submitted a list to Captain Hazelwood proposing the transfer of the four men [in the two requested categories -- Sergeant and Detective] with the least time in the Detective Bureau, including Culmone. ^12/

Acting Chief Daly then testified that shortly after he was appointed Acting Chief by the Mayor on May 7, 1975, he began holding meetings with his two captains during which they discussed departmental operations and the possibility of some transfers to improve overall supervision and efficiency. Daly claimed that he received written recommendations from both Hazelwood and Aeillo regarding possible transfers, but his testimony was conflicting as to whether they were received separately or together and whether they were received in early or late July. Daly claimed Aeillo = s testimony was incorrect in regard to Aeillo = s recollection that recommendations were not even requested until afer mid-August. ^13/ Daly denied that any of the other patrolmen transferred as of September 1, 1975 were transferred because of nonperformance, but when asked if Culmone had been transferred for that reason, claimed the question was too broad to answer either affirmatively or negatively. ^14/ He claimed that he relied principally on the recommendations of Aeillo and Hazelwood in making his decision to transfer Culmone; including the August 8 evaluation of Culmone by Hazelwood, ^15/ a handwritten version of which he claimed to have received in late July. He said he met with Harman and Mayor Miller in early August to discuss the proposed transfers.

In his testimony, Captain Hazelwood unequivocally took full responsibility for initiating Culmone = s transfer, claiming Culmone had not, in his opinion, lived up to the standards of a good detective and denying that he had been requested by Chief Daly for specific transfer recommendations. ^16/

Jack Harman, however, claimed repeatedly that the transfer decision had been made by late July but that it was decided to postpone the announcement until late August when Acting Chief Daly returned from vacation. He claimed Culmone = s transfer was designed for A overall efficiency of the department. @ ^17/ On redirect examination he testified that the transfers were made to fill certain vacancies which had existed at least since he was hired in May of 1974. ^18/

The testimony of Jack Harman, who was a witness for the PBA, contradicted the three superior police officers, who also contradicted each other as to both the timing and the sequence of events leading to Culmone = s transfer as well as the degree of the Mayor = s involvement in the decision. Harman was questioned at great length regarding the Mayor = s involvement in the decision. He was extremely evasive, uncooperative, often unresponsive to the questions asked of him, and gave the undersigned the distinct impression he was attempting to conceal the Mayor = s involvement. When questioned directly about the Mayor = s part in the negotiations and his reactions to the PBA and its involvement in the litigation, he refused to answer some questions, claiming confidentiality, frequently hesitated and turned to counsel for guidance, and even when denying improper activities on the Mayor = s part, almost always carefully qualified his answers. The totality of Harman = s testimony led the undersigned to believe that Harman really intended to avoid the truth. ^20/ His testimony standing alone is sufficient to raise serious questions as to the Mayor = s involvement in the demotion and when Harman = s testimony is coupled with that of Culmone = s, the inescapable conclusion emerges that Culmone = s transfer was, at least in part, motivated by the Mayor^21/ in an attempt to retaliate against Culmone for exercising his protected rights.

Admittedly, valid reasons were offered by the Township for transferring Culmone because of his poor performance as a detective and the need for more officers on patrol. Evidence as to poor performance was conflicting, however, between Aeillo and Hazelwood, and Hazelwood could not be specific about Culmone = s shortcomings. Even if these reasons were believed in their entirety, [and Aeillo was in fact a forthright and credible witness] if the transfer decision was, nonetheless, motivated in part by a desire to discourage protected union activities, then it was unlawful.

Based primarily on the testimony of Jack Harman, relating to the Mayor = s involvement in negotiations and the transfer decision, and for all the other reasons given above, the undersigned concludes that the PBA met its burden of proving by a preponderance of the evidence that the Township = s action in transferring Officer Culmone from the Detective Bureau to the Patrol Division was discriminatory and motivated in part by a desire to discourage the exercise of protected rights and was, therefore, violative of N.J.S.A. 34:13A-5.4(a)(3).

1. Cease and desist from:

a. Discriminating in regard to hire or tenure of employment or any term or condition of employment of any employee to discourage its employees in the exercise of the rights guaranteed to them by the New Jersey Employer-Employee Relations Act that includes the right to form, join and assist any employee organization without fear of penalty or reprisal.

2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act:

a. Offer William Culmone reinstatement in the Detective Bureau from which he was unlawfully transferred on September 1, 1975, without prejudice to any rights or privileges enjoyed by him.

b. Post at the Municipal Building in Wayne, New Jersey, copies of the attached notice marked Appendix A A @ . Copies of such notice on forms to be provided by the Director of Unfair Practice Proceedings of the Public Employment Relations Commission shall, after being duly signed by Respondent = s representative, be posted by Respondent immediately upon receipt thereof, and maintained by it for a period of at least sixty (60) consecutive days thereafter in conspicuous places including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced or covered by any other material.

c. Notify the Commission in writing, within twenty (20) days of receipt of this Order what steps the Respondent has taken to comply herewith.

____________________________
Edmund G. Gerber

Hearing Examiner

DATED: June 17, 1977
Trenton, New Jersey
1/ The PBA specifically alleged that the Township violated N.J.S.A . 34:13A-5.4(a)(1), (3) and (4). These subsections provide that an employer, its representatives or agents are prohibited from: A (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. (4) Discharging or otherwise discriminating against any employee because he has signed or filed an affidavit, petition or complaint or given information or testimony under this Act. @
2/ On July 12, 1976, two weeks after the submission of briefs, a Hearing Examiner = s Recommended Report and Decision was issued in the matter of City of Hackensack and Richard Winner, et al ., H.E. No. 77-1. This report discussed various possible standards for finding violations of Subsection 5.4(a)(3). The parties mutually suggested to the undersigned that the instant Report not be issued until the Commission issued its Decision and Order in Hackensack . The Commission issued said decision, P.E.R.C. No. 77-49 on March 17, 1977.
3/ Transcript, 3/9/76, page 27.
4/ In a post-hearing brief, counsel for the PBA referred to the Unfair Practice Charge as being based on a violation of N.J.S.A . 34:13a-5.4(a)(3) only, although the actual Charge claimed violation of Subsection 5.4(a)(1) and (a)(4) as well. Since the essence of the Charge was an (a)(3) violation, and counsel referred to this alone in the post- hearing brief, the undersigned considers the charges of (a)(1) and (a)(4) violations withdrawn by the PBA.
5/ Transcript, 4/5/76, page 50.
6/ Exhibit CP-1.
7/ Exhibit CP-=6.
8/ Exhibit CP-3.
9/ Township = s Brief, page 3.
10/ Transcript, 3/9/76, pages 94-95.
11/ Exhibit CP-2.
12/ Transcript, 3/9/76, page 97. Sergeant Youngman, the man with the least time of all in the Detective Bureau, although on Aeillo = s list, was not transferred. Aeillo claimed the explanation he received was that Youngman A was a good detective and they wanted him to stay in the Detective Bureau. @ [Transcript, page 99].
13/ Transcript, 3/9/76, pages 115-119.
14/ Transcript, 3/9/76, page 121.
15/ Exhibit CP-5.
16/ Transcript, 4/5/76, pages 89, 91, 93.
17/ Transcript, 4/5/76, page 76.
18/ Transcript, 4/5/76, page 85.
20/ See e.g., Transcript, 4/5/76, pages 24-28.
21/ It should be noted that the Mayor did not testify at the hearing.