H.E. NO. 83-27

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

BOROUGH OF TETERBORO,

Respondent,

-and-	Docket No. CO-83-51-27

LOCAL 945 TEAMSTERS,

Charging Party.

Appearances:

For the Respondent

Parisi, Evers & Greenfield, Esqs.

(Irving C. Evers, Of Counsel)

For the Charging Party

Rothbard, Harris & Oxfeld, Esqs.

(Nancy Iris Oxfeld, Of Counsel)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

On September 2, 1982, Local 945 Teamsters (the "Union") filed an unfair practice charge against the Borough of Teterboro (the "Borough") with the Public Employment Relations Commission. The charge alleged that the Borough violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the "Act"), specifically subsections 5.4(a)(1) and (3),1/ when it laid off Andrew DeKorte in retaliation for his support of Local 945 Teamsters.

On October 4, 1982, the Director of Unfair Practices issued a Complaint and Notice of Hearing. The Borough filed an answer denying that the layoff of Andrew DeKorte was "with reference" to his union activities but rather was due to the Borough's economic conditions. Pursuant to the Complaint and Notice of Hearing, a hearing was held on October 22, 1982, in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. The parties filed post-hearing briefs by November 24, 1982.

An Unfair Practice Charge having been filed with the Commission, a question concerning alleged violations of the Act exists, and, after hearing and afer consideration of the post-
hearing 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 Borough of Teterboro is a public employer within the meaning of the Act and is subject to its provisions.

Local 945 Teamsters is a public employee representative within the meaning of the Act and is subject to its provisions.

Andrew DeKorte at the time the incident arose which gave rise to the filing of this unfair practice charge was a public employee within the meaning of the Act and subject to its provisions.

DeKorte was hired for the Borough's Department of Public Works ("DPW") on May 1, 1981. He joined a department that consisted of a supervisor, Joseph Fazio, and one other employee, Joseph D'Antonio. Also, during the summer months the Borough hired an additional employee which the Borough characterizes as "part time," who normally worked 40 hours per week during the months of July and August only. At the time of this hearing on October 22, the "part-time" employee was still employed by the Borough, working 40 hours per week.

In February 1982, the Borough Manager, Charles T. Rowett, called in D'Antonio and DeKorte separately and told the men their salary would be increased by 10% in the coming year. Both men expressed some dissatisfaction with the amount and they communicated this directly to Rowett and to their immediate supervisor, Joseph Fazio. Rowett reconsidered the increases and advised the men they would receive additional amounts: D'Antonio was to receive an additional $500 and DeKorte an additional $1000. Rowett never brought up the possibility of any layoffs at this time. (Tr. 44)

D'Antonio and DeKorte then decided they would "try to get a union so [they could] get overtime and a little more money." (Tr. p. 9) They went to Local 945 Teamsters' union hall and met with Business Agent Robert J. Fusco. The union had some question as to whether the two employees would constitute a bargaining unit in the public sector and forwarded this inquiry to their attorney for an opinion.

On August 6, 1982, the Borough received notification that Local 945 Teamsters had filed a Petition for Certification of Public Employee Representative with the Public Employment Relations Commission to represent these two employees. On August 10 Rowett called D'Antonio and DeKorte in to meet with him. Borough Clerk Margaret J. Cahill was also present at this meeting. At the meeting Rowett initiated a discussion with the men concerning potential additional budgetary expenses and their salary concerns. Rowett had not had any discussions with the men concerning their compensation between the February meetings discussed above and this meeting.

Rowett asked the men "did they have any item of discontent they felt." (Tr. p. 80) On prodding from Ms. Cahill the men indicated they felt they should receive more money. Rowett reminded the men that there was a State mandated five percent limit (CAP) on the amount the budget could be increased over the previous year. He told them any extraordinary increases might precipitate layoffs. According to D'Antonio in the course of the discussion when they informed Rowett they went to the Teamsters because they wanted greater salary increases Rowett said:

he [Rowett] said he was working within a five percent CAP and he had that notice of our wanting to join Teamster's. And if wen went through with it, that we would both receive pink slips at the end of the month. (Tr. p. 9)

The men were told to think about the discussion and discuss it with their supervisor, Fazio. According to DeKorte, later that day Fazio told him:

he [Fazio] came and called me outside and he told me that Mr. Rowett told him to tell me that I would be laid off if I continue to go ahead with the union. And if not, he would drop the whole idea. He would drop the layoff and we would go back to the way we were...I told my supervisor I went this far. I will go the complete route. (Tr. 45, 47)

Rowett admitted he called the men in and discussed CAPs, the men's salaries, additional expenses and layoffs, but denied that the union was discussed. I credit the testimony of D'Antonio and DeKorte for several reasons.

(1)	Teamsters Business Agent Fusco testified he was called by D'Antonio and DeKorte on the day of this meeting. They told Fusco they were told to drop the idea of joining the union or they would be laid off. He instructed them to put all the information in a letter and mail it to the union. D'Antonio composed the letter, both men signed it and it was mailed to the union.

(2)	Ms. Cahill was at this meeting and had firsthand knowledge of what transpired and was not called as a witness.

(3)	The DeKorte-Fazio conversation is unrefuted and Fazio did testify at the hearing.

(4)	The timing of events gives additional credibility to the union-layoff testimony. There had been no discussion of salaries between February and August. After the petition was received in August, Rowett called the two men into his office -- they had not requested either a meeting or additional increases -
- yet Rowett cautioned them that additional expenses that might "pop up...might precipitate layoffs." (Tr. 82) Even without the anti-union testimony, one might well infer illegal motivation on the part of the employer from the timing of events and the admitted discussion that transpired.

On August 12, 1982, Andrew DeKorte received a notice that he would be laid off effective August 21.

The unfair practice charge was filed on September 2, 1982.

Did the Respondent violate subsections (a)(1) and (3) of the Act when it laid off Andrew DeKorte?

Discussion and Analysis

In East Orange Public Library v. Taliaferro, 180 N.J. Super. 155 (App. Div. 1981) ("East Orange"), the Court, followed and lead of the United States Supreme Court in Mount Healthy City Bd/Ed v. Doyle, 429 U.S. 274 (1977) and the National Labor Relations Board in Wright Line, Inc., 251 NLRB No. 159, 105 LRRM 1169 (1980) ("Wright Line") 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., a 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.2/ Counsel for both parties agree that this is the test to be applied.

N.J.S.A. 34:13A-5.3 provides that public employees "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..." The undersigned concludes based on the above that a motivating factor in the employer's decision to lay off Andrew DeKorte was his joining and assisting in the formation of an employee organization - Local 945 Teamsters - to act for and negotiate agreements on his and Joseph D'Antonio's behalf. Once DeKorte was laid off, the remaining one employee would not be eligible to form a negotiations unit. Mass. v. Boro of Shrewsbury, P.E.R.C. No. 79-42, 5 NJPER 45 (¶10030 1979), affm'd 174 N.J. Super. 25 (App. Div. 1980), pet. for certif. den. 85 N.J. 129 (1980).

Having found that the Charging Party made an initial showing that DeKorte's protected activity was a substantial, i.e. motivating factor in the decision to lay off DeKorte, the second step of the Wright Line-East Orange test is would the layoff have occurred in the absence of the protected activity?

The Respondent argues that DeKorte was laid off because of the economic condition that existed and a determination that the work of the DPW could be performed without the second employee in view of a cut back on certain Borough DPW services being performed. I am not persuaded that the layoff would have occurred absent the protected activity.

The Borough posits that as early as July 7, 1982, at a meeting of department heads Rowett pointed out to the department heads that layoffs might be necessary because of fiscal problems. Minutes of the "July 7" meeting were placed in evidence (CP-1). The minutes have a date at the bottom which indicates they were typed by Ms. Cahill on "7/8/82." The minutes list 16 unanticipated emergency expenses discussed including "Special Labor Attorney." Rowett admitted that on July 7 the Borough did not anticipate the need for a Special Labor Counsel as an unanticipated emergency expense, yet he claimed that except for that item the memorandum is an account of a meeting that transpired on July 7. He denied that the memorandum was prepared for this litigation (Tr. 105) but he could not explain how the Special Labor Attorney item appeared on the July 7 list. It is difficult to give credibility to an argument that layoffs were considered on July 7 when the purported minutes of this meeting contain such an unexplained error.

Rowett also testified initially that on August 3 an additional unanticipated expense occurred. He testified that around August 3 the Borough decided to purchase a new police car when the "engine went out." (Tr. 114) He initially testified that on August 10 when he discussed layoffs with DeKorte and D'Antonio, the Borough anticipated the car purchase. DeKorte was laid off on August 12. R-3 in evidence indicates that it was not until August 19 that the Chief of Police found out the cost of the engine repair, and Rowett testified on cross-examination that it was after they obtained this repair cost that the decision to purchase the car was made. (Tr. 118)

Since part of the Respondent's defense is that unanticipated additional expenses placed the Borough in a position where they might exceed their legal CAP limit, the undersigned might infer from the unrefuted testimony that the Borough considered that the potential for additional expense after the petition was filed was a legitimate management reason to lay off an employee. In February the Borough anticipated the cost of the salary increases of these employees. In August, after receiving the notice of the representation petition from the union, the Respondent approached the men directly and questioned them concerning additional raises and the CAP and layoffs (Tr. 80), and two days later laid off DeKorte.

The second part of Respondent's economic defense is that the determination was made that the DPW work could be performed without the second employee. Actually the size of the department was not reduced. The summer employee was retained and remained working 40 hours per week at the time of the hearing on October 22. The summer employee had only worked until September in prior years. Therefore there was no net reduction in the work force. The summer employee replaced the laid off employee.

Also the cost difference between the two employees was not great. The summer employee continued to work 40 hours per week at $6.50 per hour. Annual base pay of the summer employee would be $13,520. DeKorte's I 1982 would have been $14,763.3/

Based on the above the undersigned is not persuaded that the Borough would have laid off DeKorte had he not decided to continue with the union.

It is therefore recommended that the Commission find the Borough of Teterboro violated N.J.S.A. 34:13A-5.4(a)(3) and derivatively (a)(1) when it laid off Andrew DeKorte.

Upon the entire record before me, I recommend the Commission issue the following:

ORDER

It is ORDERED that:

A.	The Respondent Borough of Teterboro cease and desist from:

1.	Interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed to them by laying off Andrew DeKorte for engaging in protected activities on behalf of Local 945 Teamsters.

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 the rights guaranteed to them by the Act, particularly by laying off Andrew DeKorte for engaging in protected activities on behalf of Local 945 Teamsters.

B.	The Respondent Borough of Teterboro take the following affirmative action:

1.	Forthwith offer to re-employ Andrew Dekorte for the position he formerly held in the Department of Public Works, or any other substantially equivalent position, make him whole for lost earnings from August 21, 1982 at the rate he would have earned at the time he was laid off, less interim earnings,4/ together with interest at a rate of 12% per annum from August 21, 1982.5/

2.	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 thereafter. Reasonable steps shall be taken by the Respondent to ensure that such notices are not altered, defaced or covered by other materials.

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

/s/Joan Kane Josephson

Hearing Examiner

DATED:	March 4, 1983

Trenton, New Jersey

WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed to them by laying off Andrew DeKorte for engaging in protected activities on behalf of Local 945 Teamsters.

WE WILL NOT discriminate in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage our employees in the exercise of the rights guaranteed to them by the Act, particularly by laying off Andrew DeKorte for engaging in protected activities on behalf of Local 945 Teamsters.

WE WILL forthwith offer to re-employ Andrew DeKorte for the position he formerly held in the Department of Public Works, or any other substantially equivalent position, make him whole for lost earnings from August 21, 1982 at the rate he would have earned at the time he was laid off, less interim earnings, together with interest at a rate of 12% per annum from August 21, 1982.