P.E.R.C. No. 2002-70, Trenton

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CITY OF TRENTON, Respondent, -and- Docket Nos. CO-H-99-331 CO-H-2000-105 CO-H-2000-184 TRENTON SUPERIOR OFFICERS ASSOCIATION, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Courter, Kobert, Laufer & Cohen, attorneys (Stephen E. Trimboli, of counsel) ¶

For the Charging Party, Wills, O'Neill & Mellk, attorneys (G. Robert Wills, of counsel) ¶

DECISION ¶

On April 27, 1999, the Trenton Superior Officers Association (TSOA) filed an unfair practice charge (CO-99-331) against the City of Trenton. The charge alleges that the City violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., specifically 5.4a(3),1 / when its Mayor refused to promote Joseph Constance, a deputy chief and the TSOA's president, to the position of provisional chief. The charge ¶

1/ This provision prohibits public employers, their representatives or agents from: "(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." ¶

alleges that despite his promise to promote Constance to chief, the Mayor promoted another deputy chief and that irritation with Constance and the police unions as well as Constance's position as Mercer County Republican Chairman motivated that decision. ¶

On September 22, 1999, a Complaint and Notice of Hearing issued. On October 5, 1999 and March 3, 2000, the City filed an Answer and amended Answer denying that it engaged in an unfair practice and seeking a "severance" of allegations of "political retaliation." ¶

On October 28, 1999, Constance and the TSOA filed another unfair practice charge (CO-2000-105) alleging that the City unlawfully refused to "buy back" Constance's unused vacation days pursuant to the "retirement process." This action allegedly violated 5.4a(1), (3) and (4). 2/ ¶

On January 12 and 19, 2000, the TSOA filed another charge and amended charge (CO-2000-184) alleging that the Acting Director of Police, Paul Meyer, placed Constance on "leave without pay" during an approved vacation. This action is alleged to be a "unilateral and unjustified departure from past practice without notice and collective negotiation" and in retaliation for ¶

Note2/ N.J.S.A . 34:13A-5.4a(1) and (4) 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. (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." ¶

Constance's union activity, allegedly in violation of 5.4a(1), (2), (4) and (5). 3/ ¶

On April 20, 2000, a Consolidated Complaint and Notice of Hearing was issued on all charges. ¶

On May 1, 2000, Hearing Examiner Jonathon Roth granted the City's unopposed motion to dismiss allegations of political reprisal. Between May 8, 2000 and June 6, 2001, the Hearing Examiner conducted ten days of hearing. The parties examined witnesses, introduced exhibits, and filed post-hearing briefs. ¶

On December 3, 2001, the Hearing Examiner recommended dismissing the consolidated Complaint. H.E. No. 2002-9, 28 NJPER 103 (¶33037 2001). He found that the TSOA did not carry its burden of proving that anti-union animus was a substantial or motivating factor in the decision not to appoint Constance as provisional chief. Accordingly, he recommended dismissing CO-H-99-331. In the absence of any demonstrated unlawful motive for refusing to buy back Constance's unused vacation days or for placing Constance on leave without pay, he recommended dismissing CO-H-2000-105 and the 5.4a(1), (2) and (4) allegations in CO-H-2000-184. Absent evidence defining the practice from which ¶

Note3/ N.J.S.A . 34:13A-5.4a(2) and (5) prohibit public employers, their representatives or agents from: "(2) Dominating or interfering with the formation, existence or administration of any employee organization. (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." ¶

the City allegedly deviated, he recommended dismissing the 5.4a(5) allegation. ¶

On January 15, 2002, after extensions of time, the TSOA filed a brief in support of exceptions. 4/ No factual exceptions were filed pursuant to N.J.A.C . 19:14-7.3. Four general disagreements with the Recommended Decision were raised. On February 22, after extensions of time, the City filed an answering brief and cross-exceptions. We will now summarize the exceptions, responses and cross-exceptions. ¶

First, the TSOA argues that Hearing Examiner erred in not finding that protected activity was a substantial or motivating factor in the decisions not to approve Constance as chief or provisional chief. It contends that the Hearing Examiner failed to consider that Constance led a boycott of a promotional ceremony, which upset the Mayor and led the public debate and opposition to the Mayor's proposal to create a civilian police directorship to replace the civil service police chief. The TSOA argues that the boycott was protected activity -- it was entitled to express its displeasure with an alleged violation of the promotional process for sergeant. The TSOA also disagrees with the Hearing Examiner's finding that even if the boycott was ¶

Note4/ The exceptions indicate that they were filed on Constance's behalf. Given the broad scope of the exceptions and the fact that Constance was a named charging party in only one of the three charges, we assume that the Consolidated Complaint is being litigated on behalf of the TSOA and that the exceptions were filed on its behalf. The TSOA also requested oral argument. We deny that request. The issues have been fully briefed. ¶

protected conduct, the Mayor's anger was not a reaction to that conduct. ¶

The TSOA also contends that the Hearing Examiner erred by focusing solely on the Mayor's state of mind, and not the motivation of others in the administration. For example, the TSOA notes that the City's Business Administrator took inappropriate action relative to Constance at the parties' first negotiations session and that the only reasonable conclusion to draw is that Constance's unwillingness to sell out to management would interfere with his promotion to chief. The TSOA argues that the Hearing Examiner appeared to assume that because the Mayor was not directly involved in negotiations, he was insulated from this alleged anti-union animus. ¶

The TSOA also argues that the Business Administrator and the Director of Public Safely revealed significant anti-union animus. Both are asserted to have expressed and acted on the view that Constance could not become chief unless he relinquished his loyalty to the union and adopted a more management-oriented position. In particular, the TSOA argues that the Director of Public Safety, and not the Mayor, was the appointing authority, and that he indicated that for Constance to become chief, Constance would have to back away from his union duties because these duties were causing problems for the administration. Certain critical advisors and cabinet personnel all assertedly advised the Mayor not to promote Constance because he refused to "go along to get along." ¶

The City responds that the Hearing Examiner correctly found that the boycott of the promotional ceremony was not protected activity. The City further contends that the boycott challenged a non-negotiable promotional decision and that actions protesting non-negotiable issues are not protected. Finally, the City argues that the Hearing Examiner correctly found that even if the boycott was protected, the Mayor's anger was directed at Constance's disloyalty and racial insensitivity, not his protected activity. ¶

The City next responds that there was no finding that the Business Administrator's comments were inappropriate or unlawful; no evidence to suggest that the Business Administrator or any other official was hostile towards Constance because of his reaction to the alleged comments; and no nexus proven between the comments and the decision not to promote Constance. As for the Director of Public Safety, the City contends that there is no basis for rejecting the Hearing Examiner's credibility findings. ¶

The second TSOA exception concerns Constance's political activity. The TSOA contends that the Hearing Examiner found that the primary reason for the refusal to promote Constance was politics and not anti-union animus. It challenges this finding by arguing that political considerations are illegal; the employer had no legitimate reasons for not promoting Constance; and therefore its anti-union reasons violated the Act. ¶

The City responds that the TSOA is misrepresenting the Hearing Examiner's findings. First, the Hearing Examiner found that the TSOA had not proven that protected activity was a substantial or motivating factor in the decision not to promote Constance. Thus, under the tests for assessing allegations of retaliation for union activity, the City was not obligated to prove a legitimate reason for its action. Second, the Hearing Examiner found that the Mayor was motivated by a variety of factors, including Constance's alleged lack of commitment to community policing, and that the Mayor told Constance that to be appointed chief, he would have to: (1) reside in the City; (2) work on changing his public image; (3) commit to making substantial changes in the police department; and (4) devote his full attention and time to serving as chief. ¶

The City also contends that the Hearing Examiner identified a "pay for promotion" practice as a concern the Mayor had about appointing Constance. Under that practice, a superior officer contemplating retirement was paid a sum of money to retire by a subordinate at the top of the promotion list to ensure a vacancy before the promotion list expired. The Hearing Examiner assertedly found that the Mayor strongly disapproved of the alleged practice and believed that Constance facilitated it. ¶

The City also contends that the Hearing Examiner found that the Mayor was concerned that Constance was unpopular in the African-American community. As for Constance's leading the opposition to the Mayor's plan to implement a civilian police directorship, the City argues that the Hearing Examiner correctly concluded that public loyalty to an articulated managerial policy is presumed of any managerial executive such as the police chief. As for the Mayor's political concerns, the City argues that the Hearing Examiner found that the Mayor was concerned that if Constance was promoted to chief, the Mayor's own popularity among Trenton voters would decline significantly. The City contends that this is a far cry from unlawful political retaliation. ¶

In its third exception, the TSOA contends that because the City's other reasons were either political or pretextual, the preponderance of evidence establishes that protected activity figured in the promotion denial. It argues that there were no legitimate business reasons to bypass Constance because the political considerations were illegal and that the Hearing Examiner found that the interview process for the three eligible candidates for provisional chief was a sham. ¶

The City responds that we need not consider any other factors that could have influenced the decision unless the charging party first proves anti-union animus and that the TSOA failed to meet that burden. The City nevertheless reiterates the legitimate reasons it asserts motivated the Mayor's decision. As for the alleged sham interview process, the City responds that by the time of the interview, the Mayor had already determined not to promote Constance for reasons unrelated to his union activities. ¶

In its fourth exception, the TSOA argues that the Hearing Examiner erred in finding that by early March 1999, Constance had little chance of being promoted. The TSOA argues that Constance's lobbying on behalf of the TSOA in opposition to the City's establishing a police director position was protected by the Act, irritated the administration, and contributed to the advice of the Director of Public Safety not to promote Constance. ¶

In response, the City submits that Constance's opposition to the directorship position did not constitute protected activity since that dispute concerned a non-negotiable issue of managerial policy. Assuming it was protected activity, the City argues that the Mayor and Director of Public Safety never cited Constance's opposition as a basis for not selecting him as chief. Finally, the City maintains that the City could legitimately reject a candidate who is unable to shed his representational role and implement the employer's supervisory duties. ¶

Finally, the TSOA argues that there are inadequate findings of fact on which to base any analysis of CO-H-2000-105 and CO-H-2000-184. ¶

The City responds that the Hearing Examiner's factual findings did address these charges; the TSOA does not cite any evidence to contradict the Hearing Examiner's conclusion that the City's alleged refusal to buy back Constance's unused vacation days was not motivated by anti-union animus; the City did not depart from any alleged past practice; and the City did not have an illegal motive for placing Constance on an unpaid leave. ¶

The City has also filed two cross-exceptions. It argues that Constance and the other deputy chiefs were managerial executives not protected by the Act. It also argues that the City is entitled to a spoliation inference with respect to the surreptitious audiotapes of telephone calls made by Constance but not produced at hearing. It contends that the City is entitled to an inference that tapes that were made, but lost or destroyed by Constance, contained evidence favorable to the City's case. ¶

We have reviewed the record. We incorporate the Hearing Examiner's findings of fact (H.E. at 4-84) with these modifications. ¶

We modify finding 21 on page 41. There is insufficient evidence in the record to support a finding that former TSOA Vice-President Golden suggested that there were police union demonstrations against the Mayor's plans for a police director or that Constance tried to stop such demonstrations. His testimony more likely was referring to successor contract negotiations and PBA demonstrations that Constance may have tried to stop. ¶

We modify finding 21 on page 44 to indicate that when the Mayor said that he was expecting picketers and protesters, he was referring to citizen unrest if he appointed Constance. He was not referring to police union protests against a change to a civilian police director. We also modify finding 21 on page 45 because the record does not show that the police unions demonstrated against creating the director position. ¶

We begin with the allegations in CO-H-99-331 that the Mayor refused to promote Constance to the position of provisional chief because of hostility to his TSOA activity. 5/ In re Bridgewater Tp., 95 N.J . 235 (1984), articulates the standards for assessing allegations of retaliation for engaging in protected activity. No violation will be found unless the charging party has proved by a preponderance of the evidence on the entire record, that protected conduct was a substantial or motivating factor in the adverse action. This may be done by direct evidence or by circumstantial evidence showing that the employee engaged in protected activity, the employer knew of this activity, and the employee was hostile toward the exercise of protected rights. Id. at 246. ¶

If the employer did not present any evidence of a motive not illegal under our Act or if its explanation has been rejected as pretextual, there is sufficient basis for finding a violation without further analysis. Sometimes, however, the record demonstrates that both motives unlawful under our Act and other motives contributed to a personnel action. In these dual motive cases, the employer will not have violated the Act if it can prove, by a preponderance of the evidence on the entire record, ¶

Note5/ The TSOA is not now contesting the decision to have a civilian police director rather than a police chief. It challenges only the decision not to appoint Constance as provisional chief after the police chief retired and before the police director position was created. ¶

that the adverse action would have taken place absent the protected conduct. Id . at 242. This affirmative defense, however, need not be considered unless the charging party has proved, on the record as a whole, that anti-union animus was a motivating or substantial reason for the personnel action. ¶

The Hearing Examiner concluded that some evidence, but not a preponderance of the evidence, indicated that protected activities figured in the City's decision. We agree. Although there is some evidence that administration officials were hostile to Constance's role as TSOA president, the totality of the evidence indicates that reasons other than protected activity motivated the decision not to appoint Constance as provisional chief. ¶

Throughout the summer of 1998, the Mayor suggested, with varying degrees of enthusiasm, that Constance was his choice for chief, in large part because he knew that the current chief would be retiring in the spring and because he believed that he had to choose a successor from among the three deputy chiefs. The Mayor nevertheless had strong reservations about appointing Constance. ¶

The Mayor intended to call for a promotional examination for chief, in part to justify to an unenthusiastic constituency his decision to promote Constance. All along, the Mayor was concerned that he would lose support by appointing a Republican who was unpopular in the black community. He believed that Constance was not committed to community policing or to cooperation with Trenton civic groups. All these concerns reflect that the Mayor was primarily concerned with his own political base and not Constance's union activities. ¶

The Mayor was vehemently opposed to "pay for promotion." When, in mid-October 1998, he thought that the then-chief was involved with it, he told Constance that he might be chief earlier than expected. When the Mayor came to believe that Constance was involved with the practice, it added to his concern about making Constance chief. ¶

In February 1999, when the Mayor found out that he had the option of instead appointing a civilian police director, he immediately started to seek to create such a position and to back away from a decision to appoint Constance. In March, Constance and the TSOA publicly opposed the establishment of a police director position and the Mayor admonished Constance to stop calling the City Council. The Hearing Examiner assumed that Constance's calls were protected by the Act. We agree. Employees have a right to oppose a change in department structure that would remove civil service protection from a promotional position. But the Mayor had decided not to appoint Constance even before the TSOA opposed the Mayor's plan. One strong reason for moving to a directorship was to avoid having to choose Constance or one of the other two deputies as chief. The Mayor wanted to broaden the search beyond those three candidates. ¶

Once the decision was made to create a police director position, the decision that Constance was not going to be promoted was not far behind. We agree with the Hearing Examiner that the decision had been made before the interviews for provisional chief. Constance was no longer a contender. Thus, Constance's activity opposing the referendum had no real impact on a process that had already been set in motion. ¶

The TSOA argues that the boycott of the Ingram promotion ceremony was protected activity and a factor in the decision not to appoint Constance provisional chief. Even if we were to accept that argument, we would conclude that the City proved that it would not have appointed Constance, even absent that activity. See Bridgewater (if charging party proves that protected activity motivated adverse personnel action, complaint will nevertheless be dismissed if respondent proves that it would have taken same action even absent the protected activity). The evidence proves that the Mayor's other reasons for not appointing Constance as provisional chief predated and outweighed any hostility to the boycott. Accordingly, we dismiss the allegations in CO-H-99-331. 6/ ¶

We also need not decide whether the City is entitled to a spoliation inference with respect to audiotapes of telephone conversations made by Constance but not produced at hearing. We ¶

Note6/ In light of this ruling, we need not decide on this record whether the deputy chief positions are managerial executives. A clarification of unit petition is the more appropriate mechanism for deciding that question. The City has filed such a petition. ¶

assume, however, that if the tapes contained any evidence of anti-union animus, they would have been produced. ¶

We also dismiss the allegations in CO-H-2000-105. The TSOA did not prove that the City's rejection of Constance's request that it "buy back" his unused vacation days was retaliatory. ¶

We also dismiss the allegations in CO-H-2000-184. There is no evidence that the City changed an established practice when it placed Constance on leave without pay. Nor is there any evidence that the decision was motivated by anti-union animus. ¶

OrderORDER ¶

The Consolidated Complaint is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners Buchanan, Katz, Muscato and Sandman voted in favor of this decision. Commissioner Ricci abstained from consideration. Commissioner McGlynn was not present. ¶

DATED: May 30, 2002 ¶

Trenton, New Jersey ¶

ISSUED: May 30, 2002 ¶