NJ Appeals Court Addresses Employer-Employee Relations Act

The Appellate Division of the New Jersey Superior Court recently addressed when public employers can be held liable under the New Jersey Employer-Employee Relations Act, which prohibits the discharge of employees for union activity. In its decision, the court confirmed broad remedial authority of the Public Employment Relations Commission (PERC) to require reinstatement and other legal remedies.

NJ Appeals Court Addresses Employer-Employee Relations Act

The Facts of the Case

The case springs from PERC’s final agency decision to sustain unfair practice charges filed by the Monroe Township Professional Firefighters Association, International Association of Firefighters, Local 3170 (Local 3170) against Monroe Township (the Township) Board of Fire Commissioners, District No. 1 (the Board). The suit alleged that the Board violated the New Jersey Employer-Employee Relations Act (the Act), N.J.S.A. 34:13A-1 to -43, by firing full-time firefighters in District No. 1, after it lodged the unfair labor practice charges. Meanwhile, the Board maintained that the decision to rely on volunteers rather than full-time firefighters was a cost-saving measure.

Applying the dual motivation test set forth by the Supreme Court in In re Township of Bridgewater, 95 N.J. 235 (1984), PERC upheld the findings of a hearing examiner, who determined that anti-union animus was a substantial or motivating factor for the firefighters’ termination. PERC rejected the Board’s assertion that it fired the firefighters to save taxpayer money as pretextual.

On appeal, the Board raised the following arguments: (1) PERC and the hearing examiner erred by rejecting as pretextual its cost savings defense and concluding that the Local 3170 charges were a substantial or motivating factor in terminating the paid firefighters; (2) PERC erroneously substituted its judgment for that of the Board; and (3) PERC overstepped its remedial authority by requiring the Board to indefinitely employ the reinstated employees.

The New Jersey Employer-Employee Relations Act

The New Jersey Employer-Employee Relations Act makes it unlawful to discharge or otherwise take an adverse public employer action against a worker because of his or her union activity. However, as highlighted by the Supreme Court of New Jersey in Bridgewater Township, “Public employers still retain the right, however, to discharge a worker for a legitimate business reason, unrelated to the employee’s union activities.”

In Bridgewater Township, the New Jersey Supreme Court set forth the framework for analyzing dual motive retaliation cases. The court explained that when dual motives are alleged:

The employee must make a prima facie showing sufficient to support the inference that the protected union conduct was a motivating factor or a substantial factor in the employer’s decision. Mere presence of anti-union animus is not enough. The employee must establish that the anti-union animus was a motivating force or a substantial reason for the employer’s action. Once that prima facie case is established, however, the burden shifts to the employer to demonstrate by a preponderance of evidence that the same action would have taken place even in the absence of the protected activity. This shifting of proof does not relieve the charging party of proving the elements of the violation but merely requires the employer to prove an affirmative defense.

The Court’s Decision

The Appellate Division upheld PERC’s determination. In so ruling, the court rejected the Board’s argument that PERC had usurped the Board’s authority to regulate District No. 1’s fire department. As explained in the opinion: “Simply put, the Board’s ability to govern the structure of the fire district and make personnel decisions does not, in and of itself, insulate the Board from liability or allow it to act in a retaliatory and unlawful manner.”

The appeals court further concluded PERC did not overstep its remedial authority by requiring the Board to offer to reinstate the terminated employees with substantially the same work hours, responsibilities, and benefits. Citing Bridgewater Township, the court noted that a public employer retains its rights under the Act after it reinstates an aggrieved employee “to discharge a worker for a legitimate business reason, unrelated to the employee’s union activities.” Accordingly, the reinstatement of an aggrieved employee “does not forever preclude the public employer from making legitimate and non-retaliatory employment decisions.”

For more information about the court’s decision or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.

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