On certification to the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz and Justices Schreiber, Handler, Pollock and Garibaldi. For reversal and remandment -- Justices Clifford and O'Hern. The opinion of the Court was delivered by Garibaldi, J. O'Hern, J., dissenting. Justice Clifford joins in this opinion.
The New Jersey Employer-Employee Relations Act (Act), N.J.S.A. 34:13A-1 to -21, makes unlawful a discharge or otherwise adverse public employer action against a worker because of his or her union activity. 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. Here we examine the standard the Public Employment Relations Commission (PERC) is to apply to determine whether an unfair labor practice has been committed when dual motives, both an anti-union motive and a legitimate business motive, are asserted for a public employer's action.
The Township of Bridgewater hired Anthony Longo in October 1971. He originally worked in the Road Department as a mechanic but was transferred to the Parks and Recreation Department (Parks Department) in 1975. In June 1979 Cynthia Blodgett, the Parks Director, promoted Longo to Assistant Foreman. The Township created this position to give Longo a raise of $.33 per hour. The table of organization called for a foreman and six laborers to staff the Parks Department, but the foreman position was vacant and remained unfilled until January 1980.
In October 1979, the Township voluntarily recognized the Bridgewater Public Works Association (Association) as the exclusive representative of the employees of the Public Works Department and the Parks Department. Longo was one of approximately seven Township employees, and the only Parks Department employee, involved in the Association's organization.
In the latter part of 1979 and early 1980, Longo and other members of the Association's negotiation team met with Township officials to negotiate terms and conditions of employment.
These negotiations were continuing on March 5, 1980 when Blodgett called the Parks Department employees to a meeting. The Township claims the purpose of the meeting was to discuss changes in job descriptions and promotional opportunities for Parks Department employees. The Association alleges, however, that the purpose of the meeting was to suggest to the employees that they would be better off without the Association. Although the exact purpose of the meeting is disputed, it is uncontroverted that at the meeting each employee received an envelope containing a pay raise. Upon opening his envelope and finding a pay increase of $.10 per hour effective January 1, 1980, Longo interrupted Blodgett, protesting that the meeting was illegal absent an Association representative.
Immediately after the meeting the Parks Department employees contacted the President of the Association to protest Blodgett's actions at the March 5th meeting. At the Association's request, a meeting was held on March 7th; the meeting was attended by the Mayor, the Business Administrator, Blodgett and the Parks employees. At that meeting Blodgett defended her actions, stating that she had no intention of persuading the employees to leave the Association. She specifically asked two employees if she had requested that they leave the Association; both employees said no. Although Longo remained silent during the meeting, the Mayor testified that as he was leaving, Longo said "[t]hey [the employees] apparently had been intimidated" and "she's got them scared to death."
After the March 7th meeting, the President of the Association sent a memo to the Mayor apologizing for the embarrassment caused by the meeting, but expressing disbelief that all the employees of the Parks Department suddenly had changed their minds about Blodgett's purpose in calling the March 5th meeting.
The Township's "Employee Handbook" requires 30 day prior notice to an employee when his position is to be abolished. "Employee Handbook," Article II, para. 2.5. Nevertheless, on April 21, 1980, the Mayor and the Business Administrator summoned Longo to a meeting at which they informed him that the Township was abolishing the Assistant Foreman position effective the next day. Beginning that next day, Longo was transferred to the Road Department as an operator. His pay was reduced by $.25 per hour.
The Township asserted two reasons for Longo's transfer. First, there were "too many chiefs" in the Parks Department. Second, Longo could not get along with his supervisors, Parks Director Blodgett and Parks Superintendent Barack. Shortly after Longo left the Parks Department, the hiring of an additional laborer increased the work force to seven.
On June 6, 1980, the Association filed with PERC an unfair labor practice charge against the Township. The Association alleged that the Township had unlawfully demoted and transferred Anthony Longo from his position of Assistant Foreman of the Parks Department to the position of Operator in the Road Department in retaliation for Longo's protest of the unilateral wage increases offered at the March 5th meeting. The Association also argued that the action violated the Township's personnel guidelines.*fn1 The Township denied the charges. After a hearing, the PERC hearing examiner recommended dismissal of the unfair practice charge because (1) Blodgett's actions at the March 5 meeting did not violate the Act; hence, Longo's statement at the meeting was not an exercise of a protected union activity and (2) the Mayor exercised his managerial prerogative in transferring Longo. The Association filed exceptions to the hearing examiner's report.
PERC rejected the hearing examiner's report and held that the Township's transfer, demotion and reduction of Longo's salary was in reprisal for activity protected by the Act and thus violated N.J.S.A. 34:13A-5.4 a(1) and (3). PERC in its decision ordered that Longo's pay be increased by $.25 per hour, retroactive to his transfer in April, 1980. However, PERC did not order Longo's reinstatement as Assistant Foreman because Longo expressed no preference between his old and new jobs and because PERC found that the position of Assistant Foreman had been created merely to justify Longo's pay raise. PERC also denied the Township's motion for reconsideration of its decision. The Township then appealed to the Appellate Division, which affirmed PERC's decision, holding it was supported by substantial evidence and did not conflict with the Appellate Division's decision in East Orange Pub. Library v. Taliaferro, 180 N.J. Super. 155 (1981).
We granted the Township's petition for certification, 91 N.J. 547 (1982). We affirm the Appellate Division's judgment, granting PERC's motion for enforcement of its decision.
The major issue here is whether, under the Act, N.J.S.A. 34:13A-1 to -21, PERC has adopted a proper test for resolving unfair labor practices in retaliation for an employee's exercise of protected union activity. In resolving this question, "the experiences and adjudications" under the Labor Management Relations Act (LMRA), 29 U.S.C.A. 141 to 187, are appropriate guides in determining unfair labor practices*fn2, because the language and intent of the Act and the LMRA are substantially the same. Galloway Tp. Bd. of Educ. v. Galloway Tp. Ass'n of Educ.
Sec., 78 N.J. 1, 9 (1978); Lullo v. International Ass'n of Fire Fighters, 55 N.J. 409, 424 (1970); see also East Orange Pub. Library, supra, 180 N.J. Super. at 160 (noting the comparability of N.J.S.A. 34:13A-5.4 a(3) and 29 U.S.C.A. 158(a)(3)). Compare N.J.S.A. 34:13A-5.4 a(1) and (3) with 29 U.S.C.A. 158(a)(1) and (3).
Under both the LMRA and the Act, if an employer fires an employee for having engaged in union activities, with no other basis for the discharge, the employer commits an unfair labor practice. Generally, however, an employer will assert that he has fired the employee for legitimate business reasons. An examination of the evidence may reveal that the asserted justification is a sham, or was not in fact relied upon. When this occurs, the reason advanced by the employer is deemed pretextual. Since no legitimate business reason exists, there is in fact no dual motive.
When dual motives are alleged, the National Labor Relations Board (NLRB) and the courts have a difficult time establishing the proper standard to evaluate whether the employer's actions result in an unfair labor practice. How are the competing reasons to be evaluated? Who has the burden of establishing each reason? What standard of proof should be required to establish the reasons?
For years the NLRB and the federal courts struggled to determine the proper tests to determine whether the LMRA has been violated in a dual motivation case. For a discussion of these various tests, see Wright Line, 251 NLRB 1083, 1984-85 (1980); NLRB v. Transportation Management Corp., U.S. , , 103 S. Ct. 2469, 2473-74, 76 L. Ed. 2d 667, 674-75 (1983). Finally in 1980, in Wright Line, 251 NLRB 1083 (1980), the NLRB adopted as its standard the test enunciated by the Supreme Court in Mount Healthy City School District Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S. ...