BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

Docket No. CO-H-89-301

                                                    ANALYSIS

The local Union argues that the Authority permanently demoted the grievant because he joined the Union and that it eliminated the Lab Technician title so that the grievant would have no effective relief in arbitration. As a remedy, the Union seeks an order reinstating the grievant as a Lab Technician with back pay (The Union also seeks attorneys fees - a remedy the Commission has yet to order). The Authority argues that it had just cause to demote the grievant demonstrated by Arbitrator Knowlton's award, and a legitimate business reason - cost savings - for eliminating the Lab Technician title. It also claims the charge was not timely filed.

N.J.S.A. 34: 13A-5.4 (c) gives the Commission "exclusive power...to prevent anyone from engaging in any unfair practice..." [and] authority to issue...a complaint stating the specific unfair practice charged...provided that no complaint shall issue based upon any unfair practice occurring more than 6 months prior to the filing of the charge." Thus, events occurring more than six months prior to April 14, 1989 (i.e. before October 14, 1988), may not, independently, form the basis for finding an unfair practice.

N.J.S.A. 34: 13A-5.4 (a) (3) prohibits public employers, their representatives or agents from "discriminating in regard to hire or tenure of employment or any term and condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this Act." The "rights guaranteed" by the Act include the rights "to form, join and assist any employee organization." N.J.S.A. 34: 13A-5.3.

In re Bridgewater Tp., 95 N.J. 235 (1984), the Supreme Court, affirming the Commission's determination that an employee had been illegally transferred and demoted, articulated the standard for determining whether an employer has illegally discriminated. Under Bridgewater, no violation will be found unless the charging party proves, 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 employer was hostile toward the exercise of the protected rights.

If the employer does not present evidence of a lawful motive or if its explanation is rejected as a pretext, there is a sufficient basis for finding a violation without further analysis. Where the record demonstrates that both motives unlawful under our Act and other motives contributed to a personnel action, the employer will not have violated the Act if it can prove, by a preponderance of the evidence on the entire record, that the adverse action would have taken place absent the protected conduct. 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. In these dual motive cases, conflicting proofs about the employer's motives are for the trier of fact to resolve. See rutgers Medical School, PERC No. 87-87, 13 NJPER 115 (18050 1987); Holo-Krome Co. v. NLRB, F. 2d. ___, 139 LRRM 2353 (2nd Cir. 1992).

The operative date for the statute of limitations is October 14, 1988. Events occurring prior to that date may not, independently, form the basis for finding an unfair practice. Thus, evidence about the Authority's decision on August 8, 1988 to permanently demote the grievant may not, standing alone, be relied upon to find a violation of the Act.

The Authority's decision to eliminate the Lab Technician title was made by resolution on November 3, 1988, within the limitations period. Evidence about the Authority's motives both to demote the grievant and to eliminate the title is relevant to the timely issue. In analyzing this case I first examine the Authority's motives relative to the demotion. I then consider whether the Authority violated the Act by eliminating the title.

I find that the Union has shown by a preponderance of the evidence on the entire record that anti-union animus was a motivating factor in the Authority's decision to permanently demote the grievant. The grievant had worked at the Authority for eight years when he was demoted. He had been a Lab Technician for nearly five years. The Authority had been satisfied with his performance except for the number of occasions he left work early in 1987 and 1988. In march 1988, the grievant joined the Union. The Authority knew that he joined the Union because the Superintendent gave him his dues authorization card. Before he joined the Union, the Authority had not disciplined the grievant for the absences or any other offense. On May 11, 1988, he was counseled for the first time about leaving work early. On July 21, 1988  he left work at 3: 24 (about one hour early) and on August 8, 1988 was permanently demoted. Arbitrator Knowlton concluded, and the parties have acknowledged by stipulation, that the Authority had just cause to demote the grievant, but that a permanent demotion was excessive discipline.

Standing alone, this evidence may not meet the Union's burden under Bridgewater. The Authority was motivated, at least in part, by the grievant's record of leaving work early without permission. Arbitrator Knowlton found this to be a sufficient reason for an eight-week demotion and it is certainly a lawful motive for discipline under the Act.

TO BE CONTINUED