P.E.R.C. No. 2003-41, NJ/State Judiciary

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of STATE OF NEW JERSEY JUDICIARY, Respondent, -and- Docket No. CO-H-2001-10 PROBATION ASSOCIATION OF NEW JERSEY, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, David Samsom, Attorney General of New Jersey (George N. Cohen, DAG, of counsel) ¶

For the Charging Party, Fox and Fox, attorneys ¶

(Daniel J. Zirrith, of counsel) ¶

DECISION ¶

On July 21, 2000, the Probation Association of New Jersey filed an unfair practice charge against the State of New Jersey Judiciary. The charge alleges that the employer 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 reassigning nine senior probation officers in the Mercer vicinage in retaliation for the protected activity of current or former PANJ officials. A ¶

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." ¶

similar allegation involving the Essex Vicinage was withdrawn at hearing. ¶

On October 12, 2000, a Complaint and Notice of Hearing issued. On January 25, 2001, the Judiciary filed an Answer denying that it violated the Act and asserting several defenses. ¶

On April 19 and 24, June 5 and 6, July 30 and 31, and August 6, 2001, Hearing Examiner Arnold H. Zudick conducted a hearing. The parties examined witnesses and introduced exhibits. They waived oral argument, but filed post-hearing briefs. ¶

On August 29, 2002, the Hearing Examiner recommended dismissing the Complaint. H.E. 2003-5, 28 NJPER 382 (¶33140 2002). He found that PANJ did not prove that the Judiciary's selection of a shop steward, union president and union vice-president to be part of a nine-person reassignment, was in retaliation for protected activity. Instead, he found that the Judiciary implemented a reassignment/transfer program for legitimate business reasons devoid of hostility or discriminatory motives. ¶

On September 26, 2002, PANJ filed exceptions and a supporting brief. PANJ asserts that the Hearing Examiner erred in finding that several management witnesses -- Chief Probation Officer Michael Green, Human Resources Manager Angelina Bowers, Family Division Manager Alfred Federico, and Trial Court Administrator Jude Del Preore -- were reliable and credible witnesses. In particular, it asserts that: Green was not a reliable witness because he did not accurately answer a question concerning a conversation with Master Probation Officer Arlene Johnson about Local 103 Vice-President Kevin Farley, one of the transferred senior probation officers; Green, Bowers, Federico and Del Preore were not credible witnesses because they gave contradictory testimony; and Green was a more reliable witness than Farley and therefore, the Hearing Examiner should have found that PANJ proved hostility regarding Farley's selection for transfer. ¶

On October 16, 2002, the Judiciary filed an answering brief responding to each of PANJ's exceptions. ¶

We have reviewed the record. We incorporate the Hearing Examiner's findings of fact (H.E. at 4-45), including his credibility determinations. ¶

The Hearing Examiner found that beginning in 1995, the Judiciary engaged in a strategic planning process that culminated in a 1998 report which recommended, in part, the use of employee teams. Team development might result in reassignments. ¶

To implement the team concept, the vicinage policy team decided to cross-train employees. All employees holding journeymen positions -- which included senior probation officers -- would eventually be transferred and cross-trained. The policy team decided to reassign nine senior probation officers in the Spring of 1998; three officers were to be reassigned from each of three divisions. ¶

Division managers Green, Eberhardt and Federico decided which senior probation officers would be reassigned and made recommendations to the trial court administrator. He approved the recommendations. Among the nine reassigned were a shop steward, the union president, and the union vice-president. ¶

PANJ argues that Chief Probation Officer Green was not a reliable witness because he testified that he did not have a conversation with Master Probation Officer Arlene Johnson that the Hearing Examiner found, in fact, had occurred. The conversation involved an earlier attempt by Senior Probation Officer Farley to obtain a position in the Drug Court. The Hearing Examiner explained that Green's responses to the questions concerning that conversation were accurate in context. We accept that explanation. Even if we were to accept that Green was avoiding having to answer the question in the affirmative, that fact does not prove hostility to protected activity. ¶

PANJ argues that the management representatives who testified were not credible because their testimony was contradictory. The Hearing Examiner noted that one of the witnesses better recalled the details of the meetings where the employees to be reassigned were discussed. We agree with that assessment and conclude that the minor factual discrepancies do not undermine the overall credibility of the witnesses or prove that an illegal reason motivated the reassignments. The Division Managers were told to select officers for reassignment. They made recommendations about who would leave their divisions and where they should go. The Human Resources Manager passed along those recommendations to the Trial Court Administrator who made the final decisions. That is the picture painted by the witnesses' testimony and it does not evidence anti-union animus. ¶

Finally, PANJ argues that Probation Officer Kevin Farley was a more reliable witness than Chief Probation Officer Michael Green. It contends that Green's testimony was inconsistent with the testimony of other management witnesses and that, in light of that inconsistency, the Hearing Examiner should have found hostility. ¶

A Hearing Examiner is in the best position to assess witness credibility. Absent other evidence in the record that convinces us that some other version of the events occurred, we will not overturn a credibility determination. No such evidence is present in this case. ¶

The charging parties contend that the transfers of the nine senior probation officers were motivated by hostility towards protected activity and thus violated 5.4a(3). The standards for assessing such discrimination claims are set forth in In re Tp. of Bridgewater, 95 N.J. 235 (1984). ¶

The Hearing Examiner found that the record conclusively shows that the Judiciary implemented a reassignment/transfer program, and particularly chose to reassign the nine senior probation officers, for legitimate business reasons devoid of hostility or discriminatory motives toward PANJ. He reached that conclusion based in large part on his assessment of witness credibility. Absent compelling evidence to the contrary, we have not disturbed those determinations. See City of Trenton, P.E.R.C. No. 80-90, 6 NJPER 49 (¶11025 1980). Given the Hearing Examiner's overall findings, including his credibility determinations, and absent any persuasive showing that those findings should be rejected, we adopt his conclusion that PANJ did not meet its burden of proof on its allegations concerning the reassignments. We therefore adopt the recommendation to dismiss the Complaint. ¶

OrderORDER ¶

The Complaint is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners Buchanan, DiNardo, Mastriani, Ricci and Sandman voted in favor of this decision. None opposed. Commissioner Katz was not present. ¶

DATED: December 19, 2002 ¶

Trenton, New Jersey ¶

ISSUED: December 20, 2002 ¶