P.E.R.C. No. 2024-57, Newark

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CITY OF NEWARK, Respondent, -and- Docket No. CO-2021-138 LOCAL 617, WORKERS UNITED, SEIU, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission adopts a Hearing Examiner’s Report and Recommended Decision dismissing a Complaint alleging that the City of Newark retaliated against a member by terminating his employment for engaging in protected conduct under the Act, including advocating for better working conditions and speaking at a union rally. The Commission finds that the Hearing Examiner’s findings of fact and conclusions of law are reasonably supported by the record, specifically the finding that while the terminated employee had engaged in protected conduct, the record showed that the adverse employment action suffered by the member was caused by his own violations of the attendance policy and that the decision to end his employment occurred before he engaged in protected conduct. ¶

This synopsis is not part of the Commission decision. It has been prepared for the convenience of the reader. It has been neither reviewed nor approved by the Commission. ¶

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CITY OF NEWARK, Respondent, -and- Docket No. CO-2021-138 LOCAL 617, WORKERS UNITED, SEIU, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Cleary, Giacobbe, Alfiere, Jacobs, LLC (Gregory Franklin, of counsel) ¶

For the Charging Party, Oxfeld Cohen, LLC (Arnold Cohen, of counsel) ¶

DECISION ¶

This case comes before the Commission on exceptions filed by Local 617, Workers United, SEIU (Local 617 or “the Local” ) to a Hearing Examiner’s decision on an unfair practice charge (UPC) it filed against the City of Newark (City). H.E. No. 2024-8, 50 NJPER 376 (¶90 2024). Local 198's UPC alleges that the City violated the New Jersey Employer-Employee Relations Act (the Act), N.J.S.A. 34:13A-1 et seq., specifically 5.4a(3) and (5),1/ but not 5.4a(1), when the City terminated M.E., a per diem sanitation truck driver in retaliation for conduct protected under the Act. On January 12, 2022, a Complaint and Notice of Pre-Hearing issued against the City on the section 5.4a(3) only. On January 21, 2022, the City filed an Answer denying that it violated the Act. ¶

On July 27 and 28, 2023, the Hearing Examiner conducted a hearing via Zoom at which the parties examined witnesses and presented exhibits. Both parties submitted post-hearing briefs, and on November 8, the Hearing Examiner issued a Report and Recommended Decision dismissing the Complaint. ¶

The Hearing Examiner concluded that the City did not violate the Act when it terminated M.E.’s employment because the termination lacked a nexus with M.E.’s protected conduct. Specifically, the Hearing Examiner made findings of fact and credibility determinations, concluding that the decision to terminate M.E.’s employment preceded his attendance and comments at a union rally and subsequent meeting with the Mayor and instead was predicated on violations of the attendance policy. ¶

On March 14, 2024, the Local filed exceptions to the Hearing Examiner’s Report and Recommended Decision. The City filed a brief in opposition to the exceptions on April 2. ¶

SUMMARY OF FACTS ¶

We have carefully reviewed the record, including the hearing transcript and the parties’ exhibits. N.J.A.C. 19:14-7.2.2/ We adopt and incorporate the Hearing Examiner’s findings of fact, which are supported by the record. We summarize the essential facts as follows. ¶

Local 617 represents all regularly employed non-supervisory blue collar employees of the City, including sanitation truck drivers. At all relevant times, the parties were signatories to a collective negotiations agreement or subsequent memoranda of agreement. ¶

(a) M.E.’s prolonged status as a per diem driver and the February 2019 Staff Meeting ¶

In April 2018, M.E. was hired by Khalif Thomas, Director of Sanitation, as part of a group of new employees to work as a per diem sanitation truck driver in the Department of Public Works. Of that group, every per diem driver was eventually promoted to a permanent position except for M.E.3/ M.E. and Thomas both testified at the hearing as to the reasoning for why Thomas declined to promote M.E. and presented conflicting testimony. ¶

The Hearing Examiner concluded that on this critical point, Thomas was credible while M.E. was not. Thomas testified that M.E., who is also a children’s book author, sought a one-year leave of absence for the purpose of opening a book store. Thomas denied this request, because leaves of absence are only granted for medical reasons to new employees. Still, M.E. was absent from work for several months, but the paperwork to terminate his employment was never completed. Eventually, he returned to work on his own volition. The Hearing Examiner found that M.E.’s testimony, where he denied that he ever made a request for a leave of absence, was not credible. Thomas testified that he had every intention of making M.E. a permanent driver prior to his prolonged absence. ¶

In February 2019, Thomas conducted a staff meeting with approximately 15-40 employees in the garbage collection unit. The meeting was fairly long, lasting between 90 minutes and two hours. Introduced into evidence was the transcript of a one minute recording of the meeting which included an exchange between M.E. and Thomas. In response to M.E.’s request for additional work boots, Thomas stated that “since you sent that shot, you would have been permanent,” implying that had M.E. not made the comment or had otherwise questioned Thomas, he would have been made a permanent driver. Ex. CP-7. ¶

After considering the testimony of Thomas and M.E., in addition to the above exhibit, the Hearing Examiner concluded that Thomas’ implication that M.E. was not promoted to a permanent position due to his remarks about workplace concerns was not a serious threat and was only said in response to a “slick” or sarcastic comment by M.E., which Thomas deemed to be part of a greater theme of M.E. being disruptive during the meeting.4/ Further, the record does not include any facts showing the timing of when other per diem drivers were promoted relative to this meeting. ¶

(b) The July 2020 Union Meeting ¶

The Hearing Examiner further found that, at a regular union meeting in July 2020, M.E. was critical of the City by openly faulting the Mayor’s administration for its tactics during contract negotiations. While approximately 50 members of the negotiations unit were present, no management representatives attended and the record did not establish that management became aware of M.E.’s statements. ¶

(c) M.E.’s Employment is Terminated ¶

In March and April of 2020, Thomas instituted a new garbage collection schedule for the City that included night collections along with Sunday as an additional collection day. Permanent employees were assigned regular day shifts, while per diem drivers were utilized to work the additional shifts. M.E. was assigned to work the night shift from Sunday through Thursday. ¶

On August 4, 2020, Thomas, after reviewing M.E.’s attendance records, determined that M.E. had missed five consecutive Sunday assignments, exhibiting a pattern of chronic absenteeism. Thomas wrote a notice of termination to M.E. informing him that he would be discharged from employment. This decision followed a three- day suspension served by M.E. for absenteeism in the weeks prior. Thomas testified that several permanent employees were also disciplined for similar attendance issues, which was credited by the Hearing Examiner. Thomas provided the letter to Spencer Close, a Department of Public Works Manager who was directed to serve the paperwork on M.E. the night of August 4. ¶

The Hearing Examiner found Close to be a very credible witness. He testified that he did not know the contents of the letter, and because it was a very hectic night, he directed a dispatcher (the person all drivers see to receive their assignment) to provide the envelope to M.E. This never occurred and M.E. went to work that night. Close, noticing the envelope had not been provided to M.E., then directed a shift supervisor, who did not testify at the hearing, to deliver the envelope that night. Close testified that the supervisor confirmed he provided the envelope to M.E., however, the Hearing Examiner concluded that there was not sufficient evidence in the record to determine that M.E. was actually served with the letter on August 4. Still, the credible evidence showed that Thomas made the decision to terminate M.E.’s employment on August 4. ¶

(d) The August Union Rally and Meeting with the Mayor ¶

M.E. subsequently worked through the next afternoon of August 5, 2020 and sustained an injury while lifting a couch. He reported the injury immediately and sought medical attention. ¶

On August 6, 2020, the next day, M.E. attended a rally organized by the Local. From his wheelchair, M.E. spoke about inadequate health benefits for per diem employees and was additionally interviewed on the record by multiple news outlets. Video recording of the rally, including of M.E., was posted to Facebook and viewed by Thomas the same day. Two news articles quoting M.E. were published on August 7. ¶

Roughly two weeks later, M.E. attended a meeting with Mayor Ras Baraka, Thomas and about 30 other employees. M.E. spoke at the meeting and offered to train laborers to become CDL drivers at his storefront as a way to improve morale. M.E. testified that he believed he was still an employee at the time. ¶

The Hearing Examiner concluded that Thomas’ decision to terminate M.E.’s employment lacked a causal nexus with any of M.E.’s protected activity when advocating for better working conditions and therefore, the Local failed to meet its burden in proving by a preponderance of the evidence that the City retaliated against M.E. ¶

ARGUMENTS ¶

Local 617 files five exceptions to the Hearing Examiner’s report and recommended decision and seeks a finding that the City violated the Act when it terminated M.E.’s employment. The first two, challenging legal conclusions of the Hearing Examiner state: ¶

(a) The Hearing Examiner’s legal conclusion that Local 617 failed to meet its burden of proof, by a preponderance of the evidence, proving that Newark terminated [M.E.] due to protected activity is incorrect. ¶

(b) The Hearing Examiner’s legal conclusion that Local 617 failed to provide direct evidence of Thomas’ motivation to terminate [M.E.] is incorrect. ¶

The Local also challenges the Hearing Examiner’s credibility findings and her assignment of weight to certain evidence in the following exceptions: ¶

(c) The Hearing Examiner’s legal conclusion that Thomas was a credible witness is incorrect. ¶

(d) The Hearing Examiner’s factual conclusion [that] Thomas had the intention of making [M.E.] a permanent employee is incorrect, ¶

(e) The record is devoid of any evidence that [M.E.] was served termination papers because Newark failed to produce the person who purportedly served those papers. This lack of evidence must be drawn as a negative inference against Newark. ¶

Specifically, the Local contends that the Hearing Examiner came to the incorrect conclusion that the Local failed to meet its burden in proving that M.E.’s termination was retaliation for speaking up at multiple workplace meetings and at a union rally. Underpinning that exception, Local 617 alleges that the Hearing Examiner did not consider direct evidence presented by the Local, incorrectly determined that Thomas was a credible witness, and wrongly decided that Thomas previously had the intention of making M.E. a permanent employee. Further, the Local avers that the City’s decision not to produce the witness who claimed to have served M.E. with the termination papers on August 4, 2020 should result in a negative inference against the City, resulting in a factual finding that the termination letter was backdated and pretextual. ¶

In opposition, the City contends that the Hearing Examiner correctly made findings of fact and conclusions of law necessitating dismissal of the Complaint. The City avers that the Local’s exceptions should be rejected because they fail to meet the requirements of N.J.A.C. 19:14-7.3(b), credibility determinations made by the Hearing Examiner are supported by the record and are not reviewable under the strict standard in Flanders v. William Patterson College of N.J., 163 N.J. Super. 225 (App. Div. 1976) and that the legal conclusion that the Local failed to meet its burden under In re Bridgewater Twp., 95 N.J. 235 (1984) is supported by applicable law. The City also argues that no adverse inference against the City is warranted regarding its decision not to produce the witness who may have served M.E. with his termination letter. ¶

STANDARD OF REVIEW ¶

In analyzing the Board’s exceptions, we are constrained by the standards of review set forth in N.J.S.A. 52:14B-10(c). We may not reject or modify any findings of fact as to issues of lay witness credibility unless we first determine from our review of the record that the findings are arbitrary, capricious, or unreasonable or are not supported by sufficient, competent, and credible evidence. See New Jersey Div. of Youth and Family ¶

Services v. D.M.B., 375 N.J. Super. 141, 144 (App. Div. 2005); ¶

Cavalieri v. PERS Bd. of Trustees, 368 N.J. Super. 527, 537 (App. Div. 2004). ¶

ANALYSIS ¶

The Commission finds that the Hearing Examiner’s factual findings and conclusions of law are supported by the record and adopts them. Contingent on the Hearing Examiner’s credibility findings, the Local failed to prove a causal nexus by either direct or circumstantial evidence between M.E.’s protected conduct and his termination. ¶

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." Bridgewater., 95 N.J. at 235. Public employers still retain the right, however, to discharge a worker for a legitimate business reason, unrelated to the employee's union activities." Id. at 237. To establish a prima facie case for a violation of N.J.S.A. 34:13A-5.4a(3), the employee must show "the protected activity was 'a substantial, i.e., a motivating factor' in the employer's disputed action. Once this is accomplished, the burden shifts to the employer to 'go forward and establish by a preponderance of the evidence' that the action occurred for legitimate business reasons and not in retaliation for the protected activity." Id. at 244 (quoting East Orange Pub. Library v. Taliaferro, 180 N.J. Super. 155, 163, (App. Div. 1981)). Because the Local was unable to make this initial showing, no further analysis regarding dual or mixed motive is required and the Complaint was properly dismissed. ¶

Exceptions C, D and E: Were the Hearing Examiner’s Credibility Findings Arbitrary, Capricious, Unreasonable or Not Supported by Sufficient, Competent, and Credible Evidence? ¶

The Local takes exception to the Hearing Examiner’s factual findings that Thomas was a credible witness on three key points and urges the Commission to reject this finding because, in the Local’s view, it is contrary to the facts presented. The Commission denies these exceptions because the Hearing Examiner’s recommended decision and order is not arbitrary, capricious or unreasonable, and is supported by the record. ¶

The Commission declines to disturb the credibility findings of the Hearing Examiner. The Hearing Examiner, carefully considering factors of credibility, made detailed findings as to why she credited Thomas’ testimony on the reasons M.E. was not promoted, the genesis of his termination and the timing of the decision to discharge him. The Hearing Examiner wrote: ¶

Although [M.E.] denied seeking a leave of absence for his store, I credit Director Thomas’ testimony regarding why [M.E.] remained as a per diem unlike the other employees who were hired with him in the Spring of 2018. Thomas’ recollection was particularly strong, remembering without hesitation the name of the street on which [M.E.]’s store was located and how he was able to keep [M.E.] as an employee during his period of absence without terminating him. (4T18-19, 21-23, 60-63). His memory was not perfect, which would suggest it might be a contrived recollection. But Thomas overall was very credible even when his testimony potentially placed him in an unfavorable light. He often referred to specific business records that could corroborate his testimony or help him recall dates more accurately, and he remained largely consistent under thorough cross-examination. (4T60-66) Moreover, [M.E.] revealed that he maintained his own “storefront.” (4T35) ¶

H.E. at pp. 5-6. ¶

As to the timing and basis for M.E.’s termination, the Hearing Examiner wrote: ¶

I find that Director Thomas wrote the discharge letter for [M.E.] on August 4, 2020, that Director Thomas intended to serve [M.E.] with the discharge letter and gave the envelope containing the letter to Close the same day, that Close made two separate attempts on the evening of August 4, 2020 to make sure [M.E.] received it during his work shift, and that Close made a follow-up call to confirm service. ¶

* * * ¶

Director Thomas consistently and credibly testified that he decided to discharge [M.E.] due to a continued pattern of absenteeism. (4T35-36) ¶

[H.E. at pp. 15; 21.] ¶

The Local essentially asks the Commission to step into the Hearing Examiner’s shoes to interpret testimony in its favor, an action the Legislature has constrained the Commission from taking where, as is the case here, the conclusions are based on a reasonable interpretation of the record. See N.J.S.A. 52:14B- 10(c). ¶

Exceptions A and B: Did the Hearing Examiner Err in Finding the Local Produced Insufficient Direct and Circumstantial Evidence to Prove the City Retaliated Against [M.E.]? ¶

The Local further takes exception to the Hearing Examiner’s legal conclusion that the Local did not carry its burden of proof by not providing direct evidence or sufficient circumstantial evidence of hostility towards M.E.’s protected conduct. The Commission rejects this contention because the credibility findings as accepted by the Commission detail a timeline of events that does not support a finding of retaliation under Bridgewater. ¶

The primary question in this case is whether M.E.’s termination was in response to raising workplace concerns to his supervisor in February 2019, participating at a July 2020 union meeting, attending the August 5 union rally and speaking with the press, and/or participating at the August meeting with the Mayor. In determining improper motivation, timing of the adverse action is an important consideration. See e.g., Downe Tp. Bd. of Ed., P.E.R.C. No. 86-66, 12 NJPER 3 (¶17002 1985); and Jackson Tp. Bd. of Ed., P.E.R.C. No. 93-94, 19 NJPER 241 (¶24118 1993). ¶

We note that it is undisputed that M.E.’s conduct at those events was protected by the Act. The Hearing Examiner concluded that the credible evidence did not show that the City was improperly motivated or hostile to that protected activity when it discharged M.E. because (1) the February 2019 meeting was too distant in time to show a causal nexus to the termination, even if Thomas’ commentary at the meeting was hostile towards protected activity5/, (2) the Local did not prove that management ever became aware of M.E.’s participation at the July 2020 union meeting6/, and (3) after M.E. and other employees failed to work Sunday night shifts and were previously disciplined, the decision to terminate M.E. for pattern absenteeism was made and intended to be effectuated on August 4, 2020, prior to the meeting with the Mayor or the union rally.7/ Bolstering the Hearing Examiner’s finding that the decision to terminate M.E.’s employment on August 4 is the date of the termination letter, that Thomas caused to be mailed the next day.8/ Ex. CP-1. ¶

All together, the Local failed to prove the causal nexus between M.E.’s protected activity and his termination based on the timeline established by the record, that is completely underpinned by the Hearing Examiner’s credibility findings of the witnesses, including Thomas, Close, and M.E. ¶

OrderORDER ¶

The Commission rejects Local 617's exceptions and adopts the Hearing Examiner’s Report and Recommended Decision dismissing the Complaint. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hennessy-Shotter, Commissioners Eaton, Higgins, Kushnir, and Papero voted in favor of this decision. None opposed. Commissioner Ford recused himself. ¶

ISSUED: May 30, 2024 ¶

Trenton, New Jersey ¶

Note1/ N.J.S.A. 34:13A-5.4 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 “(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.” ¶

2/ “The record shall consist of the charge and any amendments; the complaint and any amendments; motions; rulings; orders; any official transcript of the hearing; and stipulations, exhibits, documentary evidence, and depositions admitted into evidence; together with the Hearing Examiner’s report and recommended decision and any exceptions, cross- exceptions, and briefs and answering briefs in support of, or in opposition to, exceptions and cross-exceptions.” ¶

3/ We note that the record does not reflect when the other employees were promoted. ¶

4/ We do not analyze whether this statement violated section 5a(1) of the Act because that allegation, while initially briefed by the Local in its post-hearing brief, was not plead in the unfair practice charge. ¶

5/ H.E. at p. 31; 4T18-21. ¶

6/ H.E. at pp. 12; 2T21-22. ¶

7/ H.E. at pp. 13-14; 4T43-45. ¶

8/ We note that the Hearing Examiner determined that M.E. never received the letter because it was mailed to the address on his employment application, a location he did not reside. ¶