P.E.R.C. No. 2000-45, Teaneck Tp

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of TOWNSHIP OF TEANECK, Respondent, -and- Docket No. CO-H-95-170 AFSCME COUNCIL 52, LOCAL 820, Charging Party. TOWNSHIP OF TEANECK, Respondent, v. OAL Dkt. No. CSV-1508-95 LUCIANO REA, Appellant. ¶

AppearancesAppearances: ¶

For the Respondent, Peckar & Abramson, attorneys (Gregory R. Begg, of counsel; Aaron C. Schlesinger, on the brief below) ¶

For the Charging Party and Appellant, Kathleen Mazzouccolo, attorney ¶

DECISION ¶

On November 21, 1994 and June 28, 1995, AFSCME Council 52, Local 820 filed an unfair practice charge and amended charge against the Township of Teaneck. The charge alleges that the Township violated the New Jersey Employer-Employee Relations Act, ¶

N.J.S.A. 34:13A-1 et seq., specifically 5.4a(1) and (3), 1/ by laying off Luciano Rea in retaliation for his activity protected by the Act. The charge also alleges that the issuance of a parking ticket to Local 820 president Curtis Caviness was in retaliation for his protected activity. ¶

On or about November 28, 1994, Rea filed an appeal of his layoff with the Merit System Board. That matter was transmitted to the Office of Administrative Law as a contested case. ¶

Pursuant to a Joint Order of the Merit System Board and the Commission Chair, the two matters were consolidated. Hearing Examiner Jonathon Roth was appointed as a temporary administrative law judge to hear the consolidated case. Teaneck Tp., P.E.R.C. No. 98-116, 24 NJPER 177 (¶29088 1998). ¶

On March 2, 3, and 4, 1999, the ALJ conducted a hearing. The parties examined witnesses and introduced exhibits. They also filed post-hearing briefs and replies. ¶

Note1/ These provisions 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. (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." ¶

On September 15, 1999, the ALJ issued his Initial Decision (attached). He concluded that the Township did not discriminate against Rea in retaliation for his protected conduct or otherwise violate the Act by eliminating the assessing aide title and terminating Rea's employment. The ALJ also found that Local 820 did not prove that the parking ticket incident demonstrated any anti-union animus. Finally, the ALJ concluded that the Township did not act in bad faith by eliminating the assessing aide title and laying off Rea. ¶

On October 19, 1999, AFSCME and Rea filed exceptions urging the Merit System Board to find that improper considerations were the substantial or motivating factors in the Township's decisionmaking process and that the Township therefore acted in bad faith and not for reasons of economy and efficiency. The exceptions do not contest the ALJ's recommendation to dismiss the unfair practice charge. ¶

On October 28, 1999, the Township filed a response to the exceptions. It did not file a copy of its response to the Commission because it was its understanding that the exceptions only addressed the Merit System Board issues. ¶

We have reviewed the record. We incorporate the ALJ's findings of fact. ¶

Under our Joint Order with the Merit System Board, our role is to determine whether Rea's protected activity was a substantial or motivating factor in abolishing his position and laying him off. In the absence of exceptions, we adopt the ALJ's conclusion that it was not. We also adopt the ALJ's finding that protected activity did not motivate the issuing of a parking ticket to Local 820 president Caviness. Accordingly, we dismiss the Complaint based on the unfair practice charge and transfer the record to the Merit System Board for deliberations on Rea's appeal. ¶

OrderORDER ¶

The Complaint is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners Buchanan, Madonna, McGlynn, and Ricci voted in favor of this decision. None opposed. Commissioner Muscato was not present. ¶

DATED: December 16, 1999 ¶

Trenton, New Jersey ¶

ISSUED: December 17, 1999 ¶