In the Matter of Board of Fire Commissioners, Fire

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0765-14T2
IN THE MATTER OF BOARD OF FIRE
COMMISSIONERS, FIRE DISTRICT NO. APPROVED FOR PUBLICATION
1, MONROE TOWNSHIP and MONROE December 8, 2015
TOWNSHIP PROFESSIONAL FIREFIGHTERS
ASSOCIATION, INTERNATIONAL APPELLATE DIVISION
ASSOCIATION OF FIREFIGHTERS,
LOCAL 3170.
_________________________________________
Argued October 26, 2015 – Decided December 8, 2015
Before Judges Lihotz, Fasciale and Nugent.
On appeal from the Public Employment
Relations Commission.
Jonathan F. Cohen argued the cause for
appellant Board of Fire Commissioners, Fire
District No. 1, Monroe Township (Apruzzese,
McDermott, Mastro & Murphy, P.C., attorneys;
James L. Plosia, Jr., of counsel and on the
brief; Mr. Cohen, on the brief).
Daniel J. Zirrith argued the cause for
respondent Monroe Township Professional
Firefighters Association, International
Association of Firefighters, Local 3170 (Law
Offices of Daniel J. Zirrith, L.L.C.,
attorneys; Mr. Zirrith, of counsel and on
the brief).
Frank C. Kanther, Deputy General Counsel,
argued the cause for respondent New Jersey
Public Employment Relations Commission (Don
Horowitz, Acting General Counsel, attorney;
Mr. Horowitz, on the statement in lieu of
brief).
The opinion of the court was delivered by
FASCIALE, J.A.D.
Monroe Township (the Township) Board of Fire Commissioners,
District No. 1 (the Board), appeals from a September 18, 2014
final agency decision by the Public Employment Relations
Commission (PERC) sustaining unfair practice charges filed by
the Monroe Township Professional Firefighters Association,
International Association of Firefighters, Local 3170 (Local
3170), alleging that the Board violated the New Jersey Employer-
Employee Relations Act (the Act), N.J.S.A. 34:13A-1 to -43.
Local 3170 argued the Board retaliated by firing full-time
firefighters in District No. 1, after it lodged the unfair labor
practice charges. The Board maintained the discontinuation of
full-time firefighters in favor of using volunteers was designed
to save taxpayer money for the Township. Applying the dual
motivation test set forth by our Supreme Court in In re Township
of Bridgewater, 95 N.J. 235 (1984), PERC upheld the findings of
a hearing examiner, who determined that anti-union animus was a
substantial or motivating factor for the termination. PERC
rejected as pretextual the Board's assertion that it fired the
firefighters as a cost saving measure.
On appeal, the Board again asserts its managerial action
fell within its right to assure fiscal responsibility.
2 A-0765-14T2
Accordingly, the Board contends PERC had no authority to review
the matter, and even if it did, it overstepped its remedial
authority.
We affirm PERC's determination and conclude PERC did not
overstep its remedial authority by requiring the Board to offer
to reinstate the terminated employees with substantially the
same work hours, responsibilities, and benefits. We hold,
however, that a public employer retains its rights under the Act
after it reinstates an aggrieved employee "to discharge a worker
for a legitimate business reason, unrelated to the employee's
union activities." Twp. of Bridgewater, supra, 95 N.J. at 237.
The reinstatement of an aggrieved employee, therefore, does not
forever preclude the public employer from making legitimate and
non-retaliatory employment decisions.
I.
The Act authorizes municipalities to create fire
districts, each to be run by a five-member board of fire
commissioners. There are three fire districts in the Township.
The Board is the public employer for Fire District No. 1. Local
3170 represents all Township paid firefighters and is an
employee labor organization within the meaning of the Act.
By 1999, the Board had hired three full-time firefighters
in District No. 1: Michael Mangeri, David Shapter, and Joseph
3 A-0765-14T2
Calella. In 2007, the Board added a per diem firefighter to
comply with a regulation requiring that four firefighters battle
certain fires. Calella later resigned due to a disability, and
the Board replaced him with a per diem firefighter rather than a
full-time, permanent career firefighter. Thereafter, the paid
firefighting force in District No. 1 consisted of four
firefighters: two full-time and two per diem. The per diem
firefighters were not members of Local 3170.
In March 2008, James Grande, the president of Local 3170,
attended a Board meeting and requested that the Board fill
Calella's vacant full-time firefighter paid position. Although
Commissioner Joseph Leatherwood stated the Board was not
interested in filling the vacancy with a third full-time
firefighter, President Grande pursued the request by engaging in
informal discussions with various Board members on the subject.
In June 2008, Board Chairman Charles DiPierro and Volunteer
Chief Lonnie Pipero met with Grande, Mangeri, and Shapter and
informed them that the Board had deliberated on the matter and
had decided that it would not fill the vacant position.
Local 3170 retained counsel, who wrote a letter to the
Board advising it to cease from violating the Act and the Open
Public Meetings Act, N.J.S.A. 10:4-6 to -21. Counsel requested
4 A-0765-14T2
that the Board deal exclusively with Local 3170 as to filling
the full-time paid vacancy. Chairman DiPierro responded:
The Board did not appreciate receiving [the]
letter [from Local 3170's attorney] and that
it was looking into the possibility of
eliminating the career [firefighting] staff.
He also said that any future actions taken by the union's
attorney would not help getting the third firefighter position
filled.
In July 2008, Local 3170's counsel wrote to the Board
expressing a desire to negotiate rather than litigate, but
cautioned that Local 3170 might be left with no alternative
other than filing unfair practice charges under the Act. The
Board did not respond.
On October 13, 2008, Local 3170's counsel sent another
letter reiterating its position. The Board, through counsel,
arranged a meeting with Local 3170 members. The Board's counsel
and Commissioners DiPierro and Perry attended on behalf of the
Board and agreed to hire a third firefighter. The Board also
invited Local 3170 members to attend the next Board meeting on
November 19, 2008. The Board's counsel and DiPierro did not
attend that meeting, at which Commissioner Robert LeBrun stated
that the Board "had no intention of hiring a third permanent
firefighter[,]" and that Local 3170 could "[g]o ahead and sue
us, do what you have to do."
5 A-0765-14T2
On November 20, 2008, Shapter talked to DiPierro, who
advised that "the [Board] w[as] considering getting rid of all
of the paid career staff so that they were not going to add a
third career firefighter." On December 5, 2008, DiPierro also
stated if the union president and attorney "[k]eep pushing
issues with the hiring of the third man, the Board is thinking
of pushing the union out of the station up to the other end of
town." On December 28, 2008, without any explanation by the
Board, Mangeri learned that another individual would be assuming
his payroll functions.
On January 13, 2009, counsel for Local 3170 informed the
Board that unless the parties resolved their dispute, it would
file "an unfair practice charge and grievance alleging that the
Board has violated the Act and the parties' agreement by filling
bargaining unit positions with part[-]time[,] non-unit members
and threatening unit members for their exercise of rights
guaranteed under the Act . . . ."
On February 19, 2009, the Board continued threatening the
future of the paid firefighting staff. For example, while
Shapter, DiPierro, and a per diem firefighter were at the
firehouse, another volunteer firefighter commented that the
television set was taken away and that "they got rid of the mail
. . . ." DiPierro stated "there[ are] going to be a lot more
6 A-0765-14T2
changes and this is the beginning of the end." The comment was
corroborated by the per diem firefighter.
On March 23, 2009, Local 3170 charged the Board with
violating sections 5.4(a)(1), (3), and (5) of the Act, which
provide in pertinent part:
a. Public employers, their
representatives or agents are prohibited
from:
(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.
. . . .
(5) Refusing to negotiate in good faith
with a majority representative of employees
in an appropriate unit concerning terms and
conditions of employment of employees in
that unit, or refusing to process grievances
presented by the majority representative.
Local 3170 specifically alleged that the Board violated the Act
"by unilaterally assigning bargaining unit work to non-
bargaining employees and retaliating against Local 3170 through
threats and intimidation." Local 3170 further asserted that the
Board "took retaliatory action toward[s] Local 3170 and
7 A-0765-14T2
threatened to dissolve the paid career staff if Local 3170
continued to assert its rights under the Act."
On May 8, 2009, for the first time since full-time
firefighters were hired, the weekday paid-firefighter shift was
covered by volunteer firefighters. On May 22, 2009, DiPierro
stated to Shapter that "your union and career [staff] are
putting up a wall between the [Board]." DiPierro continued,
stating "[t]his is not good for your future here . . . you know
that your contract is up December 31, [2009] and that might be
it." A per diem firefighter corroborated that DiPierro made
these statements "in a threatening and demeaning tone."
At this time, Mangeri was working light duty because of an
injury. On May 29, 2009, the day after the Board and Local 3170
members attended an exploratory conference held by PERC, the
Board eliminated Mangeri's light-duty eligibility status,
indicating that he could return to work after he was cleared by
the Board's health care provider. On June 17, 2009, the Board
passed a resolution repealing the Township's light-duty policy.
On December 16, 2009, before a regularly scheduled Board
meeting, Volunteer Deputy Fire Chief Scott Kivet overheard
Commissioner Vincent Dilieto and Chief Pipero discussing the
termination of the paid firefighting staff. Commissioner
Dilieto suggested "it might be done tonight" and Chief Pipero
8 A-0765-14T2
told Kivet "nothing [would] stop it." Dissolution of the paid
firefighting staff, however, was not discussed at the Board
meeting.
On December 29, 2009, the parties met to negotiate a new
firefighting services contract. Local 3170 made its proposals,
which DiPierro and Commissioner Michael Costello advised would
be presented to the Board. On January 14, 2010, DiPierro
requested that Mangeri bring the 2009 firehouse logbook to the
Board meeting scheduled for January 20, 2010. Three days later,
he also directed Mangeri to "forward all programs and passwords
on all [firehouse] computers to the Board."
On January 20, 2010, the Board approved District No. 1's
2010 budget. The Board stated during the meeting that "no
reduction in force [was] reflected in the budget and . . . money
to compensate the career firefighters and per diem firefighters
was included in the 2010 budget." DiPierro reassured those in
attendance that "money for paid staff was in the budget" and it
was "the Board's intention . . . to provide fire protection with
career staff, volunteers[,] and mutual aid." Commissioner
LeBrun also spoke, noting there was nothing "on the agenda to
dissolve the career staff."
The next day, DiPierro contacted Mangeri and Shapter and
instructed them to keep a more detailed logbook. On February 1,
9 A-0765-14T2
2010, Mangeri contacted DiPierro and Costello to schedule a
second contract negotiation session. The parties never met
again to discuss a successor agreement.
The Board held its next scheduled meeting on February 17,
2010. Two days prior, it posted a notice informing the public
the Board would "consider personnel matters" at the meeting and
that "[o]fficial action may be taken . . . ." At the meeting,
the Board passed a resolution (4-0) dissolving the full-time
paid firefighting staff in District No. 1.1 The resolution
stated, in pertinent part:
WHEREAS; the Board has determined . . .
the costs of maintaining full-time paid
firefighters to supplement the fire
protection services provided by [District
No. 1's] highly[-]skilled and dedicated
volunteer firefighters exceed the benefits
derived and is economically burdensome and
unwarranted in these times of severe
economic hardship and distress; and
WHEREAS; Termination of the full[-]time
paid staff will result in substantial cost
savings to [District No. 1] and will enable
[District No. 1] to reduce its budget and
thereby result in a lower fire district tax
rate.
On March 16, 2010, Local 3170 amended its unfair practice
charge, providing "specific examples of retaliatory acts by the
Board and alleging . . . the retaliation intensified since the
1
Commissioner Perry abstained from voting.
10 A-0765-14T2
filing of the [original] charge, culminating in the termination
of the full[-]time firefighting career staff."
The Board denied the charges, maintaining that it acted
within its discretion to dissolve the paid fire department. The
Board contended that it did so as a cost saving measure, rather
than in retaliation for Local 3170's undisputed protected
activity.
The hearing examiner, who conducted hearings on seventeen
days over twenty-three months, issued a comprehensive seventy-
nine page opinion, and concluded that the Board violated the
Act.
Regarding violations of N.J.S.A. 34:13A-5.4(a)(1) and (5),
the hearing examiner concluded that the Board failed to
negotiate in good faith to fill the third, full-time, paid
firefighting position. The hearing examiner found the
firefighters' interests "in preserving the weekday, daytime
firefighting duties for themselves," outweighed the Board's
motive "to operate the paid shift at a reduced cost," without
reorganizing or changing the way it delivered fire services to
District No. 1 during the day. Citing City of Jersey City v.
Jersey City Police Officers Benevolent Association, 154 N.J.
555, 580-81 (1998), the hearing examiner concluded this activity
was "mandatorily negotiable" and could not be performed without
11 A-0765-14T2
affording "the union . . . an opportunity to negotiate an
acceptable alternative, one that would not result in job loss
and [a] reduction in union membership."
Regarding violations of N.J.S.A. 34:13A-5.4(a)(3) and (4),
the hearing examiner concluded Local 3170 proved "by a
preponderance of the evidence [i]n the record that protected
conduct was a substantial or motivating factor in the Board's
decision to dissolve the paid fire department." The hearing
examiner found Mangeri and Shapter, individually and through
Local 3170 president Grande, requested, on multiple occasions,
that the Board fill the third firefighter position with a full-
time career firefighter instead of using per diem firefighters.
These requests began in 2008 and continued until 2010.
The hearing examiner found that the Board acted with
hostility. We quote at length from pertinent parts of the
hearing examiner's findings setting forth the substantial
credible evidence of retaliation and anti-union animus:
It was undisputed by the parties that
prior to 2008 there was labor peace in Fire
District [No.] 1. During that time, the
parties had a friendly working relationship
and cooperatively worked together to resolve
issues as they arose. Their relationship
began to deteriorate when Local 3170's
attorney began writing to the Board and
pressing the issue of filling the third
firefighter position with a full-time
employee who would be a member of the
bargaining unit. As early as July 16, 2008,
12 A-0765-14T2
. . . the Board read to the public a letter
it had received the previous day from
counsel to Local 3170 regarding the filling
of the vacant position. After the meeting,
Chairman DiPierro warned President Grande
that more letters from the Local's attorney
would only aggravate the situation and could
lead to the elimination of the paid staff.
The day after Shapter attended the
November 19, 2008 Board executive session
where Commissioner LeBrun remarked, "go
ahead and sue us, do what you have to do,"
[Chairman] DiPierro advised Shapter that the
Board was considering getting rid of all of
the paid firefighters. About two weeks
later on December 5th, DiPierro further
cautioned Shapter that if the union kept
pushing the issue of hiring a third full-
time firefighter, the Board will push "the
union out of the station up to the other end
of town."
On January 1, 2009, payroll duty was
taken away from Mangeri without explanation.
He was informed of the change via email
instead of personally by a Board liaison as
had been done in the past.
On January 13, 2009, Local 3170's
attorney apprised the Board that it would be
filing an unfair practice charge if it did
not cease using non-bargaining unit
employees to perform bargaining unit work.
A month later, on February 19[, 2009],
Chairman DiPierro warned . . . Shapter that
"this is the beginning of the end."
The Board's hostility and acts of
retaliation intensified and escalated after
Local 3170 filed its unfair practice charge
. . . . Setting a tone, [Chairman] DiPierro
stopped visiting the firehouse as often and
ceased eating lunch with the paid
firefighters.
13 A-0765-14T2
On May 8, 2009, while Mangeri was on
light[-]duty assignment and Shapter was off
from work, the Board operated the day shift
exclusively with volunteer firefighters. It
was the first time since the establishment
of the paid force that the weekday, day
shift was covered by volunteers. Also, in
May 2009, the Board became less responsive
and more exacting in approving requested
time-off by the firefighters. Sometime
before May 20, 2009, the Board took away
scheduling duties from Mangeri and Shapter.
They were not given an explanation as to why
the duties were assigned to a secretary and
no one from the Board informed them of the
change. The secretary told them.
President Grande and . . . Shapter
attended the May 20[, 2009] meeting of the
Board. During the public portion of the
meeting, Grande asked the Board why no paid
staff was used on May 8[] and why the
scheduling duties were taken away from
Mangeri and Shapter. Two days later, on May
22[, 2009 Chairman] DiPierro told Shapter
. . . "[y]our union and career [staff] are
putting a wall between the [Board]" and
warned him that[] "[t]his is not good for
your future here . . . you know that your
contract is up [o]n December 31, [2009] and
that might be it." [Chairman] DiPierro
exhibited further hostility toward Local
3170 by rhetorically asking Shapter, "[w]ho
is he to question the Board," referring to
union President Grande.
On May 28, 2009, the Board expended
resources in defending itself against Local
3170's unfair practice charge by attending
an exploratory conference at the
[Commission] office in Trenton. The next
day, Mangeri was informed that he could no
longer work light[-]duty assignments
effective June 1[, 2009] and . . . if he had
any questions he should call the Board
attorney. Mangeri was given no explanation
14 A-0765-14T2
for that decision and was abruptly pulled
from projects he was working on while on
light duty. Two weeks later, on June 17[,
2009], the Board rescinded the light[-]duty
policy which was enacted only the year
prior. Though Local 3170 was included in
the process of developing the policy, it
received no notice from the Board that it
was going to be rescinded.
Sometime in late June, the secretary to
the Board informed Mangeri and Shapter that
effective July 1, 2009, the Board will
eliminate the fourth firefighter on the day
shift. No explanation was provided. The
reasons that gave rise to the Board adding
the fourth firefighter had not changed or
diminished.
At the one and only negotiations
session for a new contract[,] held on
December 29, 2009, as a precondition to
negotiating, Commissioner Costello demanded
that the union justify why the Board should
continue employing paid firefighters. Even
Chairman DiPierro (who was there) testified
that Costello's comment made everyone
uncomfortable. At that session, the Board
did not make any proposals nor did it
respond to the proposals presented by Local
3170.
The Board did not pay the firefighters
their longevity or inspector's stipend in
January 2010[,] as required under the
contract and past practice. The Board
ignored numerous requests for payment made
by Mangeri and Grande, and did not pay the
firefighters until three months after they
had been terminated in June 2010. Also, in
January 2010, the Board added thirteen new
requirements to keeping the logbooks
following a particularly well-attended Board
meeting in which the public demanded that
the paid firefighters be retained.
15 A-0765-14T2
. . . .
The last and ultimate act of
retaliation by the Board was terminating the
paid firefighters eleven months after their
union had filed an unfair practice charge
with [the Commission]. [Chairman]
DiPierro's comments on [E]lection [D]ay
regarding the firefighters' wage proposal in
negotiations (citing it as the reason for
their termination) are revealing. Though
they were made after the decision to
eliminate the firefighters, the remarks
demonstrate a disposition hostile to
participating with unions in the give[-
]and[-]take process required by collective
negotiations.
The hearing examiner also rejected as pretextual the Board's
justification for dissolving the paid full-time fire department
because of "hard economic times" and a "desire[] to pass along
the cost savings to the taxpayers . . . in the form of tax
relief."
The Board provided insufficient
evidence [that] . . . the taxpayers of Fire
District [No.] 1 were losing their
properties and/or jobs in unprecedented,
record numbers. The Board itself
consistently carried a budget surplus of
over $1,000,000 per year, which trended
upwards in the years relevant to this case
(2008-2010). The Board's accountant
admitted . . . the Board was never in
financial distress. There were no "times of
severe economic hardship and distress"
established on the record.
The taxpaying[-]public's sentiment to
keep a daytime paid force was clear to the
Board. Those taxpayers who spoke at the
January 20, 2010 Board meeting made it
16 A-0765-14T2
clear. If the Board had any doubt about
what the taxpayers of District [No.] 1
desired after the meeting because those who
spoke were not representative of the
taxpayers at large, that doubt was removed
when the 2010 budget was approved by the
voters on February 17, 2010. The 2010
budget included money to pay the full-time
and per diem firefighters for another year.
It is specious for the Board to claim that
economic hardship drove its decision.
If economics were of such a concern,
one must wonder why the Board decided to
terminate the firefighters only a few days
before it would know whether or not the
budget passed and therefore know whether or
not it had the money to continue to retain
them. In a similar vein, once the Board
knew the budget passed, there was no doubt
what the citizenry desired or what District
[No. 1] could afford, yet the Board did not
rescind the resolution terminating the
firefighters.
The Board's proffered motive of
reducing taxes is equally unbelievable.
Firstly, the Board knew there would be no
tax relief in 2010 because the tax rate for
that year was already set based upon a
budget that included compensation for the
paid firefighters. Secondly, it offered to
pay Fire District [No.] 3 substantially the
same amount of money for fire protection in
2010 as the cost of retaining its own paid
force. Thirdly, the Board in fact spent
most of the savings derived from terminating
the paid firefighters on a new vehicle for
the Fire Chief and radios. The Board did
not act as though it was trying to pass the
savings onto the taxpayers of the fire
district. Its behavior does not support a
finding that reducing taxes was a genuine
motive behind eliminating the paid fire
force.
17 A-0765-14T2
I also find the Board's reasons to be
pretextual because it never once mentioned
the possibility of dissolving the paid
department because of financial concerns to
Grande, Mangeri[,] or Shapter. The parties
communicated on a number of issues
throughout 2009. The subject did not even
come up as late as December 29, 2009[,] when
the parties had a contract negotiations
session which lasted about an hour and a
half.
Neither Local 3170, Mangeri[,] nor
Shapter were given any notice of the Board's
decision to terminate them. The first that
they learned that they would be no longer
employed because of financial reasons was
the public reading of the resolution
terminating them. The abruptness and lack
of transparency surrounding their
termination erodes the credibility of the
Board's proffered reasons.
Even the Board's treatment of Mangeri
and Shapter after it terminated them
illustrates that the decision was predicated
upon hostility and ill-will rather than
unbiased business considerations. During
the two weeks Mangeri and Shapter were still
working at the firehouse before their
termination became effective, only
Commissioner Perry spoke to them. Mangeri
and Shapter were not treated by the Board as
employees customarily . . . who are severed
due to economic reasons as opposed to
performance issues. They were not given an
exit interview or advised of their post-
employment [Consolidated Omnibus Budget
Reconciliation Act] rights, nor were they
informed on where to return keys,
uniforms[,] and equipment.
18 A-0765-14T2
As a result of the overwhelming evidence establishing the
Board's violation of the Act, the hearing examiner ordered the
Board to post a notice, which provided in pertinent part:
WE WILL offer to reinstate Firefighters
Michael Mangeri and David Shapter who were
terminated effective March 5, 2010, with
substantially the same hours of work and
employment responsibilities as they had
immediately prior to their termination.
WE WILL make the terminated employees
who accept offers of reinstatement whole for
all salary and benefits due from March 5,
2010 to the present, less mitigation, with
interest at the rate set by Court rules.
WE WILL in the event the Board
determines to use at least three (3)
firefighters on the weekday, day shift,
negotiate in good faith with Local 3170 over
the filling of the third paid firefighter
position.
The Board appealed to PERC contending the hearing examiner
erred by (1) determining that it terminated paid firefighters in
retaliation for charges brought by Local 3170, and (2)
concluding that its proffered reason, i.e., to cut costs, was
pretextual.
On September 18, 2014, PERC adopted the hearing examiner's
findings of fact concluding that the Board violated N.J.S.A.
34:13A-5.4(a)(1), (3), (4), and (5). PERC rejected the Board's
argument that the hearing examiner's finding of anti-union
animus was unsupported by the facts, noting the hearing
19 A-0765-14T2
examiner's conclusion was largely "based upon credibility
determinations of the witnesses, [which] include[d] both direct
and circumstantial evidence of hostility to protected activity."
PERC also rejected the Board's financial-hardship defense,
agreeing with the hearing examiner's conclusion that it was
pretextual "as the Fire District, based on the Board's own
witness and accountant, had never been in financial distress."
In addition to the mandated posting, PERC required the
Board to take the following remedial steps: "[o]ffer to
reinstate" Mangeri and Shapter "with substantially the same
hours of work and employment responsibilities as they had
immediately prior to their termination"; make Mangeri and
Shapter whole, if they accept the offers, "for all salary and
benefits due from March 5, 2010 to the present, less mitigation,
with interest at the rate set by Court rules"; and negotiate
with Local 3170 in good faith for the placement of a third paid
firefighter if "the Board determines to use at least three . . .
firefighters on the weekday, day shift[.]"
On appeal, the Board argues (1) PERC and the hearing
examiner erred by rejecting as pretextual its cost savings
defense and concluding that the Local 3170 charges were a
substantial or motivating factor in terminating the paid
firefighters; (2) PERC erroneously substituted its judgment for
20 A-0765-14T2
that of the Board; and (3) PERC overstepped its remedial
authority, implying at oral argument before us that the Board
should not be required to indefinitely employ the reinstated
employees.
II.
The scope of our review of PERC's interpretation of the
Act, the statute it is charged with enforcing, is limited. "In
the absence of constitutional concerns or countervailing
expressions of legislative intent, we apply a deferential
standard of review to determinations made by PERC." Jersey City
Police Officers Benevolent Ass'n, supra, 154 N.J. at 567.
PERC's determination must be upheld unless the party appealing
it shows that it is clearly arbitrary and capricious. Id. at
568. As to PERC's findings of fact, our review is similarly
circumscribed; so long as there is sufficient credible evidence
to support its conclusions, we must uphold PERC's findings.
Twp. of Bridgewater, supra, 95 N.J. at 245-46. Here, the Board
has not shown that PERC's decision is arbitrary and capricious.
We begin by addressing the Board's contention that PERC and
the hearing examiner erred by rejecting as pretextual its cost
savings defense and concluding that the Local 3170 charges were
a substantial or motivating factor in terminating the paid
firefighters. The Board primarily argues that Chairman
21 A-0765-14T2
DiPierro's anti-union animus was not shared by the rest of the
Board members, and that DiPierro acted on his own behalf, rather
than on behalf of the Board.
Pursuant to the Act, it is "unlawful [to] discharge or
otherwise [take an] adverse public employer action against a
worker because of his or her union activity." Twp. of
Bridgewater, supra, 95 N.J. at 237 (citing N.J.S.A. 34:13A-
5.4(a)(1) and (3)). "Public employers still retain the right,
however, to discharge a worker for a legitimate business reason,
unrelated to the employee's union activities." Ibid.
Our Supreme Court has explained that under the Act, there
are two types of cases. First, there are "pretext" cases in
which "an employer fires an employee for having engaged in union
activities, with no other basis for the discharge[.]" Id. at
241. In such cases, it is clear from the evidence "that the
asserted justification is a sham, or was not in fact relied
upon[,]" and therefore, "[s]ince no legitimate business reason
exists, there is in fact no dual motive." Ibid. In pretext
cases, the employer's affirmative defense of legitimate business
justification is deemed to be "wholly without merit." Id. at
244 (citation and internal quotation marks omitted).
The second kind of case is dual motive. In Township of
Bridgewater, the Court set forth the framework for analyzing
22 A-0765-14T2
dual motive retaliation cases. The Court explained that when
dual motives are alleged,
the employee must make a prima facie showing
sufficient to support the inference that the
protected union conduct was a motivating
factor or a substantial factor in the
employer's decision. Mere presence of anti-
union animus is not enough. The employee
must establish that the anti-union animus
was a motivating force or a substantial
reason for the employer's action. Once that
prima facie case is established, however,
the burden shifts to the employer to
demonstrate by a preponderance of evidence
that the same action would have taken place
even in the absence of the protected
activity. This shifting of proof does not
relieve the charging party of proving the
elements of the violation but merely
requires the employer to prove an
affirmative defense.
[Id. at 242 (citations omitted).]
While often a fine line, the distinction between pretext
cases and dual motive "cases rests upon the differing weight
that is attributed to the employer's explanation when examining
the motivations behind a discharge." Id. at 244 (citation and
internal quotation marks omitted). Where an "affirmative
defense has at least some merit, a dual motive may exist and the
issue becomes one of the sufficiency of proof necessary for the
23 A-0765-14T2
employer's affirmative defense to be sustained."2 Ibid.
(citation and internal quotation marks omitted).
Here, the hearing examiner determined that this was a dual
motive case that warranted application of the Township of
Bridgewater framework. The Board concedes that the Township of
Bridgewater framework applies, but argues that PERC erred in
applying the test to the facts of this case. We see no merit to
that contention and conclude that there was no error in the
hearing examiner's findings of fact and conclusions of law.
A substantial inference of anti-union animus pervaded Board
activity during the relevant timeframes. DiPierro's disparaging
comments were made in his capacity as Chairman of the Board. He
told Grande, that "the Board . . . was looking into the
possibility of eliminating the career staff." DiPierro
reiterated a similar threat to Shapter, telling him "if the
union kept pushing the issue of hiring a third full-time
firefighter, the Board w[ould] push 'the union out of the
2
We note that this matter could have been analyzed as a
pretext case, given the Board's baseless cost savings defense
and strong anti-union animus. However, because the parties have
agreed that the dual motive framework, set forth in Township of
Bridgewater, applies, and because we reach the same result under
either approach, we analyze the issues under the dual motive
rubric, as did the hearing examiner and PERC. Our opinion,
however, should not be construed as agreeing or disagreeing with
the threshold determination that this is a dual motive case.
24 A-0765-14T2
station up to the other end of town.'" The Board acted without
notice or input from Local 3170, repealed the light[-]duty
policy, and stripped Mangeri from the administrative duties he
had performed since 2004. The approval of requested time-off
and longevity payouts were also delayed with little to no
explanation by the Board.
Moreover, the Board has not met its "burden to demonstrate
that the same action would have taken place even in the absence
of the protected conduct." Comite Organizador de Trabajadores
Agricolas (COTA) v. Molinelli, 114 N.J. 87, 101 (1989) (citation
and internal quotation marks omitted). The Board suggests,
DiPierro's comments aside, three Board members sought to pursue
tax savings by using volunteer firefighters in District No. 1.
We reject the Board's contention that the other voting
commissioners did not share DiPierro's anti-union animus when
they terminated Mangeri and Shapter.3 There is substantial
credible evidence in the record supporting the conclusion that
the Board's proffered business reason for terminating the full-
3
In the discrimination context, applying a similar burden-
shifting framework, we have held that "discriminatory comments
made by one with input into the decision-making process are not
stray remarks." Grasso v. W. N.Y. Bd. of Educ., 364 N.J. Super.
109, 118 (App. Div. 2003) (citing Abramson v. William Paterson
Coll. of N.J., 260 F.3d 265, 286 (3d Cir. 2001)).
25 A-0765-14T2
time paid firefighters was pretextual. The hearing examiner
stated in pertinent part that
[a]ccording to the Board's own witness and
accountant, . . . Fire District [No.] 1 has
never been in financial distress. The
surplus for budget year 2008 was $1,070,960.
The surplus as of December 31, 2009 was
$1,405,781, up almost $335,000. The total
assessed property valuation in District
[No.] 1 went up about $18,000,000 from 2008
to 2009 and increased another $3,000,000
from 2009 to 2010. The proposed fire tax
rate in District [No.] 1 for 2010 was $.139,
down from $.16 from the preceding year
(2009). Among the three Fire Districts in
Monroe Township, District [No.] 1
consistently had the lowest fire tax rate
before the creation of, during[,] and after
the elimination of the part[-]paid fire
department.
The 2010 budget approved by the voters
included $210,000 for salary and wages for
the two career firefighters and two per
diems. When factoring in the money also
budgeted for benefits and considering that
some of the money was spent for a small
portion of the year, there was still over
$200,000 in savings that could be used to
reduce taxes in future budget years.
The following budget year, 2011, the
Board purchased a new vehicle for the Fire
Chief costing $70,000 and new radios for
$90,000. It also purchased a new brush
truck for $140,000 with voter approval.
Even with those purchases, the Board was
able to reduce the tax rate by $.03 for 2011
by using its reserves which had been
increased by the money saved from
eliminating the paid firefighters. If the
Board had[ not] made the purchases, it could
have passed on even greater tax savings to
26 A-0765-14T2
its residents by using that money to further
reduce the tax rate.
Here, the record does not support the Board's argument that
serious economic considerations existed at the time the Board
dissolved its full-time paid firefighting staff. Our Supreme
Court has explained that "once a discharged employee makes out a
prima facie case of anti-union animus, the employer has the
burden of linking the timing of the discharges closely with
economic decline." Id. at 102. District No. 1 operated under a
large surplus during the years leading up to 2010, and earmarked
money in its 2010 budget specifically for Mangeri's and
Shapter's salaries. Once the career firefighters were
terminated, the Board exhibited no commitment to fiscal
responsibility, purchasing expensive radios and a new $70,000
vehicle for the Fire Chief. Further, the Board did not replace
its career firefighters with volunteers for 2010, its main
contention for saving taxpayer money. Rather, it contracted
with District No. 3 to provide its weekday, day fire services
for an equivalent amount earmarked in the 2010 budget to
compensate the full-time paid staff.
Finally, the Board's reliance on Borough of Keyport v.
International Union of Operating Engineers, Local 68, 222 N.J.
314 (2015) is misplaced. In Borough of Keyport, the
municipalities provided detailed financial information evincing
27 A-0765-14T2
a financial crisis. Id. at 320-26. For instance, in one
municipality there existed a surplus of only $6,000 and the
municipality "faced increased healthcare, pension, and labor
costs without an increase in tax revenues." Id. at 321.
District No. 1, however, maintained a surplus of well over
$1,000,000 in 2008, which increased by approximately $350,000
the following year. Property values in the Township also rose
during the same timeframe. Further, each of the municipalities
in Borough of Keyport submitted layoff plans to PERC for its
approval. Id. at 321, 324, 326. Here, the Board did not.
There was no credible evidence of anti-union animus in
Borough of Keyport. The issue, as addressed by the Supreme
Court, focused on whether the parties were obligated to
negotiate the tangible employment decisions made prior to their
implementation. Here, the Board does not challenge that portion
of PERC's decision. As the Supreme Court pointed out, "an
artificial 'fiscal crisis' cannot outweigh important employee
work and welfare interests." Id. at 346.
III.
Next, the Board maintains that it alone has the authority
to establish and regulate fire districts, including whether
services are provided by paid, part-paid, or volunteer
firefighters. Contrary to its contention, PERC did not usurp or
28 A-0765-14T2
otherwise supplant the Board's statutorily prescribed authority
to regulate District No. 1's fire department.
As PERC properly noted, many of the "cases cited by the
Board . . . pre-date the Act and do not involve improper or
illegal motives for personnel actions." The Board misconstrues
two fundamentally different issues. The Board is correct that
under N.J.S.A. 40A:14-81.1(a),
[t]he commissioners of any fire district
may, by resolution, establish paid positions
within the fire department, or for the fire
district, as such position shall be
determined by the commissioners to be
required for the purposes of the fire
district. The commissioners shall, by
resolution, appoint persons to, determine
the terms of, fix the compensation for, and
prescribe the powers, functions and duties
of all paid positions so established.
Moreover, under N.J.S.A. 40A:14-70.1(b), "[t]he board of fire
commissioners of a fire district not having a paid or part-paid
fire department and force may contract with a volunteer fire
company or companies for the purpose of extinguishing fires,
upon those terms and conditions as shall be deemed proper."
However, recognizing that the fire commissioners have such
power, it does not follow that they are thereby granted the
ability to engage in unlawful retaliation to protected union
activity.
29 A-0765-14T2
Empowered by the Legislature, PERC is explicitly authorized
to regulate the tangible employment decisions made by a public
employer. See N.J.S.A. 34:13A-5.2 (granting PERC remedial
authority to "make policy and establish rules and regulations
concerning employer-employee relations in public employment
relating to dispute settlement, grievance procedures and
administration including enforcement of statutory provisions").
Nothing in PERC's findings or conclusions prevented the Board
from lawfully regulating District No. 1's fire department,
including how it chooses to provide fire services and whether or
not its firefighters should be compensated. Simply put, the
Board's ability to govern the structure of the fire district and
make personnel decisions does not, in and of itself, insulate
the Board from liability or allow it to act in a retaliatory and
unlawful manner. PERC acting under its statutory authority to
enforce the Act is not a usurpation of the Board's authority.
IV.
We reject the Board's final challenge that PERC abused its
discretion by ordering the Board to take affirmative steps to
offer Mangeri and Shapter reinstatement as firefighters with
back pay and benefits and, in the event the Board determines to
use at least three firefighters, to negotiate in good faith with
Local 3170.
30 A-0765-14T2
Contrary to the Board's contention, the remedy of
reinstating employees wrongfully discharged under the Act has
been upheld under PERC's broad remedial authority. See Galloway
Twp. Bd. of Educ. v. Galloway Twp. Ass'n of Ed. Sec'ys, 78 N.J.
1 (1978). In Galloway Township, the Supreme Court held that the
authority to order reinstatement and back pay to an aggrieved
claimant "is necessarily subsumed within the broad remedial
authority the Legislature has entrusted to PERC." Id. at 9-10;
see also Maywood Bd. of Ed. v. Maywood Ed. Ass'n, 168 N.J.
Super. 45, 63 (App. Div.), certif. denied, 81 N.J. 292 (1979).
The Legislature has empowered PERC with "broad authority
and wide discretion" based on the agency's expertise and
knowledge in this "highly specialized area of public life." In
re Hunterdon Cnty. Bd. of Chosen Freeholders, 116 N.J. 322, 328
(1989). We conclude there was no abuse of that authority as to
the remedial remedy imposed by PERC. Certainly, its decision
does not preclude the Board from taking any future action,
including termination, for legitimate, non-retaliatory reasons.
Affirmed.
31 A-0765-14T2