UNION PRESIDENT

RE: UTILITIES AUTHORITY -and- LOCAL UNION

        Docket No. CO-H-89-301

Enclosed is the decision from PERC overturning the Hearing Examiner's decision on the Lab technician case. It appears to me that initially PERC states that it is not overturning the Hearing Examiner's credibility determinations, but then it proceeds to a totally different analysis of the testimony which, in actuality, completely undermines the Hearing examiner's credibility determinations. This is particularly true regarding his determination of the Executive Director's feelings of animus towards the Union.

In other context, particularly Office of Administrative Law decisions on Civil Service matters, the Appellate Division has overturned Department of Personnel determinations which have negated the Administrative Law Judge's findings of credibility. The Appellate Division has stated in numerous instances that it is for the Hearing Examiner to make credibility determinations and the reviewing agency "cannot" overturn those determinations. Accordingly, there is a basis for appealing this decision on the basis that PERC overstepped its bounds and, despite what it says in its decision, in actuality negated the Hearing Examiner's credibility findings. Conversely, the courts do give a great deal of deference to decisions by administrative agencies in their area of expertise. Accordingly, my estimate is that we would have at best a fifty-fifty chance of success on appeal. I do note, however, that in the past the Appellate Division has not been reluctant to everturn PERC decisions more so than those of other administrative agencies.

Very truly yours,

Attorney

And so as it goes, the grievant in this case did not have the six-thousand dollars to take the case to the Appellate Court. The grievant took early retirement in 2005. But back in 1997 the grievant obtained newly discovered evidence on a DEP license application which had the Lab Technician title used on it. Hmmm! The title was eliminated? But of course the Public Employment Relations Commission denied to reopen the case with this newly discovered evidence on some technicality in 2005. But still, the grievant had closure. And still, the Lab Technician title  appeared in 2014 on the facebook profile of the person who took the job from the grievant. "With liberty and justice for all?" Isn't it rather "With liberty and justice for all (who have money)?