H.E. No. 84-55

Synopsis:

A Hearing Examiner recommends that the Public Employment Relations Commission find that the Respondent Borough violated Subsections 5.4(a)(1), (3) and (4) of the New Jersey Employer-Employee Relations act when it terminated Joseph N. D'Antonio effective February 24, 1983 because he had sought union representation by Local 945 beginning in May 1982 and had also testified in an Unfair Practice paroceeding involving a co-worker, Andrew DeKorte, who had been terminated illegally in August 1982. The Hearing Examiner found that the causation test enunciated by the New Jersey Supreme Court in Bridgewater Township v. Bridgewater Public Works Association, 94 N.J. 235 (1984) had been satisfied. Further, before D'Antonio was terminated for alleged economic reasons he should have been offered part-time employment, which would have reduced the Borough's expenses for 1983. However, because D'Antonio had pleaded guilty to the offense of theft by deception on January 17, 1984, the Hearing Examiner could not recommend reinstatement and back pay beyond that date since N.J.S.A. 2C:51-2(a) mandates forfeiture of employment as a result of D'Antonio's plea of guilty. Therefore, the Borough's back pay liability terminated as of January 17, 1984.

PERC Citation:

H.E. No. 84-55, 10 NJPER 244 (¶15119 1984)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

72.311 72.358 72.332 74.341

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 84-055.pdf
Appellate Division:
Supreme Court:

H.E. NO. 84-55 1. H.E. NO. 84-55 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-84-20-37 TEAMSTERS LOCAL 945, Charging Party. Appearances: For the Borough of Teterboro Parisi, Evers & Greenfield, Esqs. (Irving C. Evers, Esq.) For Teamsters Local 945 Rothbard, Harris & Oxfeld, Esqs. (Nancy Iris Oxfeld, Esq.) HEARING EXAMINER = S RECOMMENDED REPORT AND DECISION An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the A Commission @ ) on July 25, 1983 by Teamsters Local 945 (hereinafter the A Charging Party @ or the A Union @ ) alleging that the Borough of Teterboro (hereinafter the A Respondent @ or the A Borough @ ) had engaged in unfair practices within the meaning of the New Jersey Employer- Employee Relations Act, as amended, N.J.S.A. 34:13A-1 et seq. (hereinafter the A Act @ ), in that the Respondent, after receiving notification from the Union in August 1982 that it had filed a petition with the Commission seeking representation of the Respondent = s employees, told its two employees in the Department of Public Works (hereinafter A DPW @ ) that they would be laid off if they supported the Union. Thereafter, the Respondent terminated one of the two employees, Andrew DeKorte, which resulted in an unfair practice proceeding. The Commission on April 20, 1983 ordered the reinstatement of DeKorte (P.E.R.C. No. 83-137, 9 NJPER 278), which is on appeal: App. Div. Docket No. A-4371-82T2. On February 8, 1983, during the pendency of the aforesaid Commission proceeding, the Respondent terminated the remaining DPW employee, Joseph N. D = Antonio, who had been a witness in the unfair practice proceeding involving DeKorte, all of which is alleged to be a violation of N.J.S.A. 34:13A- 5.4(a)(1), (3) and (4) of the Act.1/ It appearing that the allegations of the Unfair Practice Charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on October 25, 1983. Pursuant to the Complaint and Notice of Hearing, hearings were held on December 16, 1983 and February 16, 1984 in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Oral argument was waived and the parties filed post-hearing briefs by April 4, 1984. An Unfair Practice Charge having been filed with the Commission, a question concerning alleged violations of the Act, as amended, exists and, after hearing, and after 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 1. The Borough of Teterboro is a public employer within the meaning of the Act, as amended, and is subject to its provisions. 2. Teamsters Local 945 is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions. 3. Joseph N. D = Antonio is a public employee within the meaning of the Act, as amended, and is subject to its provisions. 4.2/ The DPW is primarily responsible for road maintenance, snow removal, grass cutting and drain and sewer maintenance. In April 1980, the DPW consisted of one full-time employee, Joseph N. D = Antonio, also known as Joseph N. Scott, and Joseph Fazio, a supervisor in the DPW. There were also two summer helpers whose jobs ended in August 1980. On May 1, 1981, Andrew DeKorte joined the DPW staff and completed his probationary period on May 1, 1982. DeKorte was laid off effective August 21, 1982 and a summer employee, who was hired in June 1982, continued to work 40 hours per week. 5.* In February 1982, Charles Rowett, the Borough Manager, met with D = Antonio and DeKorte to discus their salaries. Fazio was also in attendance. Rowett gave each employee a raise, but neither employee was happy with the amount of the increase. Rowett later called D = Antonio and DeKorte into separate meetings and gave D = Antonio an additional $500 and DeKorte an additional $1,000. Both employees also received a 4% increase in longevity pay. At neither of these meetings did Rowett mention that the Borough was having financial difficulties or that there might be layoffs. Sometime after the meetings, Fazio told Rowett that neither D = Antonio nor DeKorte were satisfied with their respective salaries. 6.* In May 1982 D = Antonio and DeKorte met with a Union business agent and signed authorization cards. 7.* On August 6, 1982 the Borough received notification from the Union that it had filed a representation petition with the Commission seeking to represent DeKorte and D = Antonio in a two-employee unit. 8.* On August 10, 1982, Rowett called a meeting with D = Antonio, DeKorte and Margaret Cahill, the Municipal clerk. Rowett then stated that the Borough was trying to work within a 5% CAP and that if D = Antonio and DeKorte persisted in their attempt to unionize, they would be laid off. Rowett also told them that the DPW had operated in the past with only part-time employees and could do so again. Later that day, Fazio spoke to DeKorte and said that Rowett had told him that DeKorte would be laid off if DeKorte went ahead with the attempt to obtain union representation. 9.* On either August 10 or August 11, 1982, DeKorte received a layoff notice effective August 21, 1982. 10. On September 2, 1982 the Union filed an Unfair Practice Charge regarding the layoff of DeKorte. 11. D = Antonio testified as a witness for the Union in DeKorte = s unfair practice case on October 22, 1982. 12. On February 10, 1983 D = Antonio was called into Rowett = s office where the Borough clerk, Cahill, was also present. Rowett stated that the Borough had just finished its budget and had passed a resolution on February 8, 1983 to utilize part-time employees instead of a full-time employee in th DPW (R-5). D = Antonio was laid off as of February 24, 1983. The only other time that the subject of layoff had arisen was when the Borough received notification of the representation petition from the Union and a meeting was held with Rowett on August 10, 1982 (Finding of Fact No. 8, supra). The minutes of the February 10, 1983 meeting were introduced in evidence as Exhibit R-2. 13. D = Antonio testified without contradiction that nothing had been said to him by Borough officials about union activity between August 1982 and the meeting on February 10, 1983. D = Antonio said that he had never asked the Union to get involved in any matter between August 1982 and February 1983. Further, D = Antonio testified that he had not engaged in any union activities between August 1982 and February 1983. Finally, D = Antonio testified that he never indicated to Rowett at the February 10, 1983 meeting that he was willing to work part-time or suffer a reduction in salary in order to maintain employment with the Borough. 14. D = Antonio acknowledged that he pleaded guilty to the offense of theft by deception on January 17, 1984 in the Municipal Court of Berkeley Township, for which he was fined $150 plus costs (R-1). 15. The Borough submitted in evidence Exhibit R-6, which sets forth a comparison of the annual cost of employing full-time v. part-time employees in the DPW. The savings for 1983 were projected at $27,184.62 by the layoff of D = Antonio. Rowett testified regarding the difficulties that the Borough was having in staying within the 5% CAP, indicating that there had been substantial increases in the area of sewers and insurance. He stated further that the Borough could not afford any layoffs in its Police Department nor in the Borough offices. It was therefore decided to make a reduction in the DPW. He testified that the Borough did not consider asking D = Antonio to take a salary reduction in wages or benefits or to work part-time. 16. After DeKorte was laid off in August 1982, the work in the DPW was done by the Superintendent, D = Antonio and two part- time employees. After D = Antonio was laid off in February 1983, the two part-time employees each worked less than 40 hours per week during the balance of 1983. Part-time employees have never received fringe benefits. THE ISSUES 1. Did the Respondent violate Subsections (a)(1), (3) and (4) of the Act when it laid off Joseph N. D = Antonio effective February 24, 1983? 2. Did Joseph N. D = Antonio forfeit his right to reinstatement to employment when he pleaded guilty to theft by deception on January 17, 1984 (N.J.S.A. 2C:20-4)? DISCUSSION AND ANALYSIS The Respondent Violated The Act As Alleged When It Laid Off D = Antonio Effective February 24, 1983 The Hearing Examiner = s conclusion that the Respondent Borough violated Subsections (a)(1), (3) and (4) of the Act is based primarily upon the findings and conclusions of the Commission in the DeKorte case: P.E.R.C. No. 83-137, 9 NJPER 278 (April 20, 1983). Although the decision to terminate D = Antonio as a full-time employee in the DPW occurred in February 1983, approximately six months after the termination of DeKorte, the Hearing Examiner concludes that the illegal motivation of the Borough continued through February 1983, having originated with the statements of Rowett at the meeting with D = Antonio and DeKorte on August 10, 1982 (See Finding of Fact No. 8, supra). It will be recalled that Rowett told D = Antonio and DeKorte at that meeting that the DPW had operated in the past with only part-time employees and could do so again. Rowett also told them that they would be laid off if they persisted in their attempt to unionize. Fazio on the same date reiterated what Rowett had said to DeKorte. In finding and concluding that D = Antonio = s having engaged in the protected activity of seeking to bring about union representation was a A substantial @ or a A motivating @ factor in the Borough = s decision to terminate him in February 1983, the Hearing Examiner takes note of the fact that D = Antonio has not engaged in any specific additional union activity since DeKorte = s termination in August 1982. However, D = Antonio did testify in DeKorte = s case on October 22, 1982. Thus, D = Antonio = s initial activity is continuing and ongoing. The Hearing Examiner does not deem it necessary to find that D = Antonio has filed grievances, sought the intervention of the Union or done anything else in order for the Hearing Examiner to find that his protected activity was a substantial or a motivating factor in the Borough = s decision to terminate him within the meaning of Bridgewater.3/ In the DeKorte proceeding before the Commission, supra, the Commission rejected the employer = s business justification defense as unpersuasive. So, too, does the instant Hearing Examiner reject the Borough = s business justification defense although, admittedly, the question is somewhat closer due to the 1983 budget constraints upon the Borough to live within the 5% CAP. What compels the Hearing Examiner to reject the business justification defense is the fact that the Borough made no effort to attempt to accommodate D = Antonio, a full-time permanent employee in the DPW with seniority over any part-time DPW employee, by offering him either part-time employment without fringe benefits, or inquiring of D = Antonio if he would be willing to accept some wage reduction in order to assist in reducing DPW expenses. The Hearing Examiner finds that it was not incumbent upon D = Antonio to come forward to Rowett and make such a suggestion, but it was rather an obligation of the Respondent as the employer. It may have well have been that D = Antonio would have rejected any offer of anything but full-time employment. This, however, is mere speculation upon the instant record. This record, thus, supports a finding that the Borough violated subsections (a)(1) and (3) of the Act when it terminated D = Antonio on February 24, 1983. Finally, the Hearing Examiner finds that he can draw an inference that a part of the Borough = s illegal motivation in terminating D = Antonio in February 1983 derived from D = Antonio = s having testified in the DeKorte proceeding on October 22, 1983. Thus, the Hearing Examiner finds and concludes that the Charging Party has also established a Subsection (a)(4) violation of the Act. D = Antonio Forfeited His Right To Reinstatement To Employment When He Pleaded Guilty To Theft By Deception on January 17, 1984 It is fact that D = Antonio pleaded guilty to theft by deception (N.J.S.A. 2C:20-4) on January 17, 1984 in Berkeley Township (R-1). N.J.S.A. 2C:51-2(a) provides, in part, as follows: A person holding any public office, position, or employment, elective or appointive, under the government of this State or any agency or political division thereof, who is convicted of an offense shall forfeit such office or position if: (1) He is convicted under the laws of this State of an offense involving dishonesty... The above statute also provides that forfeiture shall take effect, inter alia, upon a plea of guilty. Contrary to the argument of the Charging Party, the Hearing Examiner can see no way in which D > Antonio can avoid the forfeiture provisions of the above statute upon his having pleaded guilty to theft by deception. The Hearing Examiner having found that the Borough has violated the Act by its termination of D = Antonio on February 24, 1983, the Hearing Examiner now finds that he cannot order the unqualified reinstatement of D = Antonio to his former position in the DPW. Rather, the Hearing Examiner can order only that he be qualifiedly reinstated for the period February 24, 1983 through January 17, 1984 with back pay calculated during that period only. This will be reflected in the Recommended Order of the Hearing Examiner set forth hereinafter. * * * Upon the entire record in this case, the Hearing Examiner makes the following: CONCLUSION OF LAW The Respondent Borough violated N.J.S.A. 34:13A-5.4(a)(1), (3) and (4) when it terminated Joseph N. D = Antonio effective February 24, 1983. RECOMMENDED ORDER The Hearing Examiner recommends that the Commission ORDER: A. That the Respondent Borough 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 refraining from the termination of employees in the DPW such as Joseph N. D = Antonio for engaging in protected activities on behalf of Teamsters Local 945. 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 refraining from the termination of employees in the DPW such as Joseph D = Antonio for engaging in protected activities on behalf of Teamsters Local 945. 3. Discharging or otherwise discriminating against employees such as Joseph N. D = Antonio because he has given testimony under the Act. B. That the Respondent Borough take the following affirmative action: 1. Forthwith reinstate Joseph N. D = Antonio to his full-time permanent position in the Borough = s DPW, but effective only during the period February 24, 1983 through January 17, 1984 together with back pay and interest at the rate of 12% per annum during said period. 2. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix A 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 Borough to insure 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 Borough has taken to comply herewith. /s/Alan R. Howe Hearing Examiner DATED: April 17, 1984 1/ These Subsections prohibit public employers, their representatives or agents 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 any information or testimony under this Act. @ 2/ (*) The Findings of Fact denoted by an asterisk (*) are based upon those made by the Commission in the earlier Commission proceeding regarding DeKorte, supra. These findings by the Commission are binding upon the instant Hearing Examiner under the doctrine of collateral estoppel: Township of Washington v. Gould, 39 N.J. 527 (1963), State v. Gonzalez,75 N.J. 181 (1977) and Hackensack v. Winner, 82 N.J. 1 (1980). 3/ Bridgewater Twp. v. Bridgewater Public Works Ass = n., 95 N.J. 235 (1984). ***** End of HE 84-55 *****