H.E. NO. 91-21

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

CITY OF BAYONNE,

Respondent,

-and-	Docket No. CI-H-91-2

MICHAEL J. ROMANO,

Charging Party.

Appearances:

For the Respondent, Apruzzese, McDermott, Mastro & Murphy, Attorneys (Scott Eskwitt, of Counsel)

For the Charging Party, Patterson & Hundley, Attorneys

(James T. Hundley, of Counsel)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission ("Commission") on July 9, 1990, and amended on July 23, 1990, by Michael J. Romano ("Charging Party" or "Romano") alleging that the City of Bayonne ("Respondent" or "City") has engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, as amended, N.J.S.A. 34:l3A-1 et seq. ("Act"), in that the City passed over Romano for promotion on June 25, 1990, when another Lieutenant was promoted, notwithstanding Romano's qualifications for the position and his seniority; the City's action in failing to promote Romano was due to his recent and past activities on behalf of the Local and State Firemen's Mutual Benevolent Association ("FMBA"); all of which is alleged to be in

violation of N.J.S.A. 34:l3A-5.4(a)(1), (2), (3) and (7) of the Act.1/

It appearing that the allegations of the Unfair Practice Charge, as amended, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on October 4, 1990. Pursuant to the Complaint and Notice of Hearing, a hearing was held on November 27, 1990, in Newark, New Jersey, at which time the Charging Party was given an opportunity to examine witnesses, present relevant evidence. At the conclusion of the Charging Party's case on November 27th, the Respondent made a motion to dismiss on the record. The Hearing Examiner, after hearing the oral argument of counsel for the parties, granted the Respondent's motion on the record as to all of the allegations in the Complaint (Tr 131-141).2/ After granting the Respondent's motion to dismiss, he advised the parties that a written decision would follow (Tr 141).

1/	These subsections prohibit public employers, their representatives or agents from: "(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act. (2) Dominating or interfering with the formation, existence or administration of any employee organization. (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. (7) Violating any of the rules and regulations established by the commission."

2/	No evidence whatever having been adduced as to the §§5.4(a)(2) and (7) allegations in the Complaint, each was dismissed peremptorily (Tr 121, 122, 131).

An Unfair Practice Charge, as amended, having been filed with the Commission, a question concerning alleged violations of the Act, as amended, exists and, after hearing, and upon the record made by the Charging Party only, and after consideration of the oral argument of the parties at the hearing on November 27, 1990, the matter is appropriately before the Commission by its designated Hearing Examiner for determination.

Upon the record made by the Charging Party only, the Hearing Examiner makes the following:

FINDINGS OF FACT

1.	The City of Bayonne is a public employer within the meaning of the Act, as amended, and is subject to its provisions.

2.	Michael J. Romano is a public employee within the meaning of the Act, as amended, and is subject to its provisions.

3.	Romano was hired by the City as a fire fighter on May 23, 1967, and continued in that capacity until May 25, 1982, when he was promoted to the rank of Lieutenant (Tr 15, 16).

4.	It is undisputed that Romano's activities on behalf of the FMBA spanned a period beginning at least in June 1972 and have continued to the present. These activities are evidenced by by his having become the secretary of FMBA Local No. 11 in June 1972 and having continued in that capacity until June 1976 when he was elected President (Tr 16-18). In these positions he was active in collective negotiations and litigation with the City. After his term as President expired in June 1977, there was a hiatus in his

union activities until 1979, when he became "labor advisor" to Local 11. Romano continued in this capacity until June 1988. [Tr 19-21]. Also, during this period, Romano became President of the Fire Superiors Association ("Association") in 1987 and has continued in this capacity to the present (Tr 21).3/

5.	In the course of Romano's activities on behalf of the FMBA he has, in addition to participating in negotiations and engaging in litigation against the City, processed grievances through the three steps of the grievance procedure and once to arbitration (Tr 21). In the course of these activities, Romano has had numerous contacts with the Mayor, the Business Administrator, the Director of Public Safety and the Chief of the Fire Department (Tr 22-28). A recent example of the processing of a grievance by Romano was Grievance No. 3-89, which was initiated on December 2, 1989, and amicably resolved on January 3, 1990 (CP-1 to CP-4; Tr 28-37).

6.	On or about December 16, 1989, Romano took the examination for the rank of Fire Captain and on May 9, 1990, he was notified that his rank was number four on the eligibility roster and that his score was 78.840, which placed him in a tie with another Lieutenant in the department, Ernest J. Gertsen (CP-5 to CP-7; Tr 37-42). At that time there were four positions open for promotion to Fire Captain and, according to the eligibility roster list

3/	Romano as President of the Association is signatory to the current collective negotiations agreement (J-1, p. 26).

(CP-7), Romano was number five and Gertsen was number four (Tr 39, 41). Romano immediately telephoned the Director of Public Safety, Joseph M. Pelliccio and asked him how the promotions were to be made since there were only four openings and Romano was fifth on the list (Tr 41, 42). Romano stated to Pelliccio that he had "seniority" because of the prior list of promotions to Lieutenant, promulgated in 1981. When Romano signed his oath of office at that time his name appeared in the "Log" book ahead of Gertsen, who had also been promoted to Lieutenant on the same date, May 24, 1982. [CP-15, CP-16; Tr 42-48, 61, 62].

7.	Between May 10 and May 15, 1990, Romano had numerous conversations with various officials of the City, including the Business Administrator, the Chief of the Fire Department and Pelliccio, in which Romano pleaded that seniority should prevail in breaking the tie between himself and Gertsen (Tr 48-54, 56-60).

8.	On May 11, 1990, Pelliccio, as Director of Public Safety, decided to promote Romano over Gertsen, based essentially on Romano's seniority, and so advised the Chief of the Fire Department (Tr 89-91, 99-101). On May 15th, Pelleccio put his decision to promote Romano over Gertsen in writing (CP-17; Tr 101-103).

9.	On May 14, 1990, the Mayor and Business Administrator met because the Mayor had become aware that someone on the list was being "skipped" and, therefore, Romano's promotion should be rescinded (Tr 104-106).

10.	Beginning on May 15th, Romano attempted on many occasions to speak to the Mayor by telephone and was not successful until June 8th, when his plea for reconsideration was answered by a request that Romano write a letter to the Mayor, which he did on the latter date (CP-9; Tr 62-65). The Mayor's response was made jointly to Romano and Gertsen under date of June 22, 1990, in which he advised that his decision was that Gertsen would be promoted to Fire Captain on July 1, 1990 (CP-8, CP-10; Tr 65). Romano responded on June 23rd to no avail and his Unfair Practice Charge was filed on July 9, 1990 (CP-11; Tr 65, 66).

ANALYSIS

The Applicable Standard On a Motion

To Dismiss.

The Commission in N.J. Turnpike Authority, P.E.R.C. No. 79-81, 5 NJPER 197 (¶10112 1979) restated the standard that it utilizes on a motion to dismiss at the conclusion of the Charging Party's case, namely, the same standards used by the New Jersey Supreme Court: Dolson v. Anastasia, 55 N.J. 2 (1969). The Commission noted that the courts are not concerned with the worth, nature or extent, beyond a scintilla, of the evidence, but only with its existence viewed most favorably to the party opposing the motion. While the process does not involve the actual weighing of the evidence, some consideration of the worth of the evidence presented may be necessary. Thus, if evidence "beyond a scintilla" exists in the proofs adduced by the Charging Party, the motion to dismiss must be denied.

Additionally, there is involved in the instant case the necessity to include in the above analysis the decision by the New Jersey Supreme Court in Bridgewater Twp. v. Bridgewater Public Works Assn., 95 N.J. 235 (1984) since the thrust of the Association's charge, dealing with the non-renewals of Frain and Warczakowski, centers on the allegation that the Respondent Board violated §§5.4(a)(1) and (3) of the Act.

In Bridgewater, the Court adopted the analysis of the National Labor Relations Board in Wright Line, Inc., 251 NLRB 1083, 105 LRRM 1169 (1980) in "dual motive" cases where the following requisites are utilized in assessing employer motivation: (1) The

Charging Party must make a prima facie showing sufficient to support an inference that protected activity was a "substantial" or a "motivating" factor in the employer's decision to terminate; and (2) once this is established, then the employer has the burden of demonstrating that the same action would have taken place even in the absence of protected activity (95 N.J. at 242). The Court in Bridgewater further refined the above test by adding that the protected activity engaged in must have been known by the employer and, also, it must be established that the employer was hostile towards the exercise of the protected activity, i.e., manifested anti-union animus (95 N.J. at 246).

The Respondent's Motion To Dismiss Is Granted Since The Charging Party Has Failed To Adduce Even A Scintilla Of Evidence That The City Manifested Hostility, Within The Meaning Of Bridgewater, When Gertsen Was Promoted To Fire Captain On July 1, 1990 Instead Of Romano.

Leaving aside the "scintilla" and the Bridgewater tests for a moment, the Hearing Examiner notes preliminarily that an employer may legally take action inimical to an employee so long as its motivation is not interference with rights protected under the Act, either our Act or the NLRA: NLRB v. Eastern Smelting & Refining Corp., 598 F.2d 666, 669 (1st Cir. 1979).

The Hearing Examiner is persuaded that when the testimony and the documentary evidence adduced by the Charging Party is viewed most favorably to it, Romano has established only that (1) he was engaged in the exercise of extensive protected activities as an officer and representative of the FMBA in various capacities between June 1972 and the date of the hearing in this matter; and (2) the City necessarily knew of his exercise of these activities because of his extensive and highly visible contacts with City officials from the Mayor down through the administration. This plainly satisfies the first two requisites of the Bridgewater test. However, the Charging Party has failed to adduce even a "scintilla" of evidence that the City was hostile to or manifested anti-union animus toward Romano in his acknowledged exercise of protected activities over a period of 18 years.

Since the Hearing Examiner is obligated to give the Charging Party the benefit of all inferences and resolve all doubts against the City as the moving party, note is taken of one slight

instance where hostility arguably occurred. This was when Romano delivered the January 3, 1990 memo (CP-4) to the Chief of the Fire Department, following which the Chief made an ambiguous statement to the effect that "You were waiting for me to fall and make a mistake over this, and you let a civilian make a decision...," referring to Pelleccio (Tr 35, 36, 135, 136). However, this statement, if made by the Chief to Romano, fails to satisfy the "scintilla" standard of evidence required under N.J. Turnpike Auth., supra.

At the conclusion of the argument on the City's motion to dismiss, the Hearing Examiner inquired of counsel for Romano whether there was any other evidence which might possibly indicate animus on the part of the City, to which he replied that there was no "smoking gun" and there was nothing further to which he could point (Tr 139, 140).

In placing his decision to grant the City's Motion to Dismiss upon the record, the Hearing Examiner referred to two prior cases where he had reached the same conclusion, i.e., the necessity of dismissing a Complaint because of the absence of "hostility" or "animus" in a Section 5.4(a)(1) and (3) case: Lyndhurst Bd. of Ed., H.E. No. 87-56, 13 NJPER 285 (¶18119 1987), which was adopted by the Commission in P.E.R.C. No. 87-139, 13 NJPER 482 (¶18117 1987) and Southeast Morris Cty. M.U.A., H.E. No. 89-9, 14 NJPER 591 (¶19251 1988)[not appealed].

For essentially the same reasons set forth in Lyndhurst and Southeast Morris Cty., the Hearing Examiner is compelled to conclude that the Charging Party herein has failed to adduce even a

"scintilla" of evidence of hostility toward his exercise of protected activities over the years since 1972. Accordingly, he must recommend that the allegations that the Respondent City violated Section 5.4(a)(1), (2), (3) and (7) of the Act must be dismissed.

* * * *

Upon the foregoing, and upon the testimony and documentary evidence adduced in this proceeding by the Charging Party only, the Hearing Examiner makes the following:

RECOMMENDED ORDER

The Respondent did not violate N.J.S.A. 34:13A-5.4(a)(1), (2), (3) or (7) as alleged and the Respondent's Motion to Dismiss is hereby granted. The Complaint is, therefore, dismissed in its entirety.

Alan R. Howe

Hearing Examiner

Dated: February 8, 1991

Trenton, New Jersey