H.E. NO. 7407

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

TOWNSHIP OF MANTUA,

STREET AND ROADS DEPARTMENT,

Respondent

-and-	Docket No. CO-82-4-37

INTERNATIONAL BROTHERHOOD

OF TEAMSTERS, LOCAL 676,

Charging Party.

Appearances:

For the Respondent

Boakes, Lindsay and Smith, Esqs.

(John J. Lindsay, Of Counsel)

For the Charging Party

Tomar, Parks, Seliger, Simonoff & Adourian, Esqs.

(Barry M. Bennett, Of Counsel)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (the "Commission") on July 7, 1981 by the International Brotherhood of Teamsters, Local 676 (the "union" or "Local 676").

The Charge alleged that the Township violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the "Act") specifically subsection 5.4(a)(1), (3) and (5).1/ It appearing that the allegations of the Unfair Practice Charge, if true, may constitute unfair practices within the meaning of the Act, the Director of Unfair Practices, on October 6, 1981, issued a Complaint and Notice of Hearing pursuant to N.J.A.C. 19:14-2.1. The Township filed an answer denying that it had violated the Act by its actions. A hearing was held before Commission Hearing Examiner Alan Howe. On January 4, 1982, the Hearing Examiner issued his Recommended Report and Decision, H.E. No. 82-85, 8 NJPER 79 (¶13032 1982). Exceptions were filed to this decision, and on May 5, 1982, the Commission remanded the charges for a new hearing, P.E.R.C. No. 82-99, 8 NJPER 302 (¶13133 1982).

Pursuant to the remand, hearings were held on September 10, 1982 and October 12, 1982, in Trenton, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally.

The charge alleged that the Respondent violated the Act when on or about May 12, 1981, it terminated Jed Mercer in retaliation for his union organizational activities,2/ and then refused to re-employ Mercer as a police dispatcher because of his organizational activities.

An unfair practice charge having been filed with the Commission, a question concerning the alleged violations of the Act exists and, after hearing, and after consideration of the posthearing briefs 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:

FINDINGS OF FACT

The Township of Mantua is a public employer within the meaning of the Act, ad is subject to its provisions. The International Brotherhood of Teamsters, Local 676 is a public employee representative within the meaning of the Act and is subject to its provisions.

Jed Mercer was an employee of the Township for three and one-half years. He first spent five months as a CETA employee in the Streets and Roads Department and thereafter, for 18 months, was a police dispatcher. Then, in November 1979 he voluntarily transferred back to the Streets and Roads Department.

In 1980 Mercer was selected by the other employees as one of their two representatives to negotiate a "working agreement" on the employees' behalf. (Tr. p. 21) At a meeting held to discuss the working agreement Mercer was involved in an altercation with Committeemen John Lindsay and Roy Hodgen that ultimately resulted in a suspension for Mercer. Mercer testified: "I was there negotiating for the welfare of my family and fellow workers, and I just thought more interest should have been showed in what we had to say, and I was foolish and lost my temper." (Tr. p. 28) Mercer was not involved in any further negotiations. No agreement was reached by the parties and Mercer contacted the charging party-union for assistance in formally organizing the employees. Mercer's initial telephone communication to the union was made from the office of his supervisor, Charles Keller, the Project Coordinator for the Streets and Roads Department. Keller was present when Mercer made the call.

Mercer received authorization cards from the union and signed up other employees for the union. A Petition for Certification was filed with the Commission in late March 1981 and an election was conducted by a Commission election officer on May 5, 1981. Mercer was the union observer at the election. The vote was 4-1 in favor of representation.

Mercer reported to work on Wednesday morning, May 13, 1981, and he was advised by Keller that he was being laid off. He was given two weeks severance pay and was laid off immediately. He did not remain for the remainder of that day. In other Township layoffs, employees have always been given a two-week notice of impending layoff, and work the two weeks. (Tr. 38, 81 and Tr. 10/12/82--p.21)

The decision to lay Mercer off was made by John T. Lindsay who was at that time a township committeeman and Director of the Streets and Road Department. Lindsay consulted the four other committee members and they agreed tot he layoff. Lindsay advised Keller on May 12 that Mercer was to be laid off the following day. (Tr. 10/12/82--p.19)3/

The Township Code contains the following personnel policy:

§33-5. Abolition of position; effect

A position may be abolished or the number of personnel reduced by the Township Committee for reasons of economy or for reasons of a reorganization within a department or departments, except the Department of Police, where such events shall be governed by the provisions of N.J.S.A. 40A14-143. Every effort shall be made to reassign any affected permanent employee to another position in the township service for which the employee may be qualified. If no such position is available immediately, the name of the affected employee shall be kept on file, and should a vacancy occur in a position for which he is qualified, he shall be offered employment prior to taking applications for the vacancy. If an employee is demoted because of economy or departmental reorganization, he shall be placed in a new salary grade in the same step he held in his prior position before the demotion. (Emphasis added)

[N.J.S.A. 40A:14-143 provides the procedure for reemployment of police officers in the event of a reduction in the force.]

In June 1981 there was a vacancy for a police dispatcher position and Mercer's attorney wrote the chief of police on June 1, 1981 requesting that the Township apply the above personnel policy and offer the position to Mercer (CP2 in Evid.) Mercer then filed an application for the position on June 29, 1981. (CP4 in Evid.) Mercer was one of five people interviewed for the position and did not get the job. Another dispatcher opening occurred in the fall of 1981. Mercer filed another application on November 9, 1981. He did not receive that appointment. He was not interviewed for that position. On February 1, 1982 the Township laid off another member of the Streets and Roads Department. The employee was given two weeks notice and advised he would be given preferential application status for future vacant positions. (CP9 in Evid.)

DISCUSSION AND ANALYSIS

In East Orange Public Library v. Taliaferro, 180 N.J. Super. 155 (App. Div. 1981), the Court followed the lead of the United States Supreme Court in Mount Healthy City Bd/Ed v. Goyle, 429 U.S. 274 (1977) and the National Labor Relations Board in Wright Line, Inc., 251 NLRB No. 159, 105 LRRM 1169 (1980) and recently affirmed in NLRB v. Transportation Management Corp.,__ U.S. ___ (June 14, 1983) in establishing the standards for determining whether an employer's motivation makes a personnel action illegal under our statute. The charging party must first establish that the protected activity was a substantial, i.e., motivating factor in the employer's decision to take that personnel action. If the charging party makes this initial showing, then the employer must go forward and establish by a preponderance of the evidence that the personnel action would have occurred even in the absence of the charging party's protected activity. The factfinder must then resolve the conflicting proofs. See also Black Horse Pike Reg. Bd/Ed, P.E.R.C. No. 83-73, 9 NJPER 36 (¶14017 1982).

The totality of the circumstances in this case leads the undersigned to recommend that the Commission find that Mercer's protected union activity was a motivating factor in his layoff. When Mercer was involved in the negotiations for the "working agreement" he was suspended because of his behavior at the table.4/ These negotiations did not result in an agreement and Mercer organized the employees for the charging party-union. Four days after the PERC election Mercer was laid off. He was told the decision was made the prior day. There had been no earlier indication that there was any intention to reduce the staff in the Streets and Roads Department. Mercer was given severance pay and laid off instantly, contrary to Township practice in any other layoff. On two subsequent occasions the Township refused to grant Mercer the benefit of a re-employment personnel policy contained in the Township Code, which states the laid-off employees will be offered employment prior to taking other applications. On th occasion of the first vacancy he was interviewed with other applicants and not appointed; on the second vacancy, he filed an application and not even interviewed. Both openings were for police dispatcher, a position which Mercer had held for 18 months in Mantua previously.

Having found that the Charging Party has met its burden in the first part of the test, the undersigned is not convinced that the respondent has established that the layoff would have occurred absent Mercer's protected activity.

I am not persuaded by the Respondent's witnesses that the layoff had been planned for some time. Lindsay testified he decided in January to lay someone off when snow removal season ended but that was not then communicated to the Roads and Streets supervisor Keller who testified that it was he who normally made decisions to cut down on staff and recommend such decisions to the Township Committee. According to Keller, Lindsay spoke to him about the layoff "a matter of days, maybe a couple of weeks..." before receiving the petition from PERC. It was Lindsay who informed Keller that the petition had been filed with PERC. (Tr. 10/12/82, p. 17) The Respondent was aware of the organizing campaign by Mercer from the beginning when Mercer made the initial contact with the Union from Keller's own telephone. I am not convinced by a preponderance of the evidence that the planned layoff was discussed long before the organizing activities, as Respondent argues.

Respondent notes the Township had the option to pay the severance pay or have Mercer work two weeks after having been given notice. This is the only time the Township has exercised this option. It had not been exercised before. In the next layoff following Mercer's it was not exercised. This manner of layoff by itself is not conclusive, but it must be considered with the other circumstances, including the decision not to rehire Mercer as a dispatcher.

The Respondent avers that the personnel policy is inapplicable because Mercer was not laid off because of any direct budgetary problem. Lindsay was asked at the hearing:

Q	Now, the purpose of that layoff was to save money, wasn't it?

A	Yes.

Q	So, it was at -- would you agree with the characterization of it as being for economic reasons?

A	Yes. If you consider saving money as economic, which is about the best definition around, okay, yes.

(Tr. p. 95)

The Respondent argues nevertheless that this layoff is not contemplated within the personnel policy which states "personnel reduced by the Township Committee for reasons of economy." The Respondent argues that the reasons of economy language applies to situations when "the Township cannot afford to continue employment." Lindsay himself testified as to the economic ramifications of the layoff. If the economic reasons for layoff are rejected, the implication that Mercer was laid off because of union activity is even stronger. The Township argues that Mercer was laid off because the Streets and Roads Department had less work, but Keller testified that after the layoff:

I had to cut out extra little things...Instead of mowing our roads every month, we mow them twice...they've taken the street broom off the road, doing away with leaf collection...you just can't do it all..." (Tr. 10/12/83,p. 12)

Keller's testimony does not confirm that Mercer was laid off because the department had less work, and Lindsay's testimony does not confirm that the layoff was non-economic obviating the re-employment Township policy. The purpose of this personnel policy is to give laid-off Township employees the first opportunity when vacancies occur and Jed Mercer was denied that opportunity twice.

The Township argues that Mercer was not given the dispatcher appointment because he stated in the interview he preferred outdoor work in the streets department and if given the opportunity n the future would again transfer to the streets department as he did previously. This finding is not based on whether the Township was justified in not selecting Mercer over the other candidates. This finding is based on the plain language of the personnel policy f the municipal code which states the laid-off employee "shall" be offered the position for which "he is qualified...prior to taking applications."

Based on the above, I am not convinced that the Respondent has met its burden of establishing by a preponderance of the evidence that the personnel action would have occurred absent Mercer's protected activity.

CONCLUSION

Based on the entire record the undersigned recommends that the Commission find that the Respondent violated §5.4(a)(3) and derivatively (a)(1) when it laid off Jed Mercer on May 12, 1981 in retaliation for his union activity.5/

As to the remedy I recommend that the Commission make Jed Mercer whole for lost wages, less income that should be credited in mitigation, for the period of May 12, 1981 to February 1, 1982, plus interest from May 12, 1981, at a rate of 12% per annum. I recommend Mercer be paid for lost wages only until February 1, 1982, because, according to uncontroverted evidence presented by the Charging Party, the Streets and Roads Department laid off an additional employee in order to meet the State-
mandated cap law. As the least senior employee in the department, Mercer would have been laid off at that point. (CP9 in Evid.)

I also recommend that the Commission ORDER that the Township of Mantua place Jed Mercer's name on file and should a vacancy occur for which he is qualified, he should be offered employment prior to taking applications for the vacancy.

It is hereby recommended that the Commission issue the following:

ORDER

A.	That the Respondent Township cease and desist from:

1.	Interfering with, restraining or coercing its employees in the exercise of the rights guaranteed to them by the Act, particularly by laying off Jed Mercer in retaliation for his union activity and refusing to offer him employment when a vacancy occurred in the Township pursuant to the Township Code.

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 rights guaranteed tot hem by the Act, particularly by laying off Jed Mercer in retaliation for his union activity and refusing to offer him re-employment when a vacancy occurred in the Township pursuant to the Township Code.

B.	That the Respondent take the following affirmative action:

1.	Forthwith make Jed Mercer whole for lost wages, less income that should be credited in mitigation, for the period of May 12, 1981 to February 1, 1982, plus interest from May 12, 1981 at a rate of 12% per annum.

2.	Forthwith place Jed Mercer's name on file6/ and, should a vacancy occur for which he is qualified, offer him employment prior to taking applications for the vacancy.

3.	Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix "A." Copies of such notice on forms to be provided by the Commission, shall be posted immediately upon receipt thereof and, after being signed by the Respondent's authorized representative, shall be maintained by it for at least sixty (60) consecutive days. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced or covered by other materials.

4.	Notify the Chairman of the Commission within twenty (20) days of receipt what steps the Respondent has taken to comply herewith.

C.	That the Subsection (a)(5) allegations in the Complaint be dismissed in their entirety.

/s/Joan Kane Josephson

Hearing Examiner

DATED:	July 20, 1983

Trenton, New Jersey