WARREN HILLS REGIONAL BOARD OF EDUCATION v. WARREN HILLS REGIONAL HIGH SCHOOL EDUCATION ASSOCIATION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1747-04T51747-04T5

WARREN HILLS REGIONAL BOARD OF

EDUCATION,

Plaintiff-Appellant,

v.

WARREN HILLS REGIONAL HIGH

SCHOOL EDUCATION ASSOCIATION,

Defendant-Respondent.

_____________________________________

 

Argued October 18, 2005 - Decided

Before Judges Skillman, Axelrad and Levy.

On appeal from the Decision of the Public Employment Relations Commission, Docket No. CO-2003-002.

John M. Zaiter argued the cause for appellant (Broscious & Fischer, attorneys; Mr. Zaiter, on the brief).

Gail Oxfeld Kanef argued the cause for respondent (Oxfeld Cohen, attorneys; Ms. Kanef, of counsel and on the brief).

Don Horowitz argued the cause for the New Jersey Public Employment Relations Commission (Robert E. Anderson, General Counsel, on the brief).

PER CURIAM

The Warren Hills Regional Board of Education (Board) appeals from a Public Employment Relations Commission (PERC) determination that the Board committed an unfair labor practice in violation of the New Jersey Employer-Employee Relations Act (Act), N.J.S.A. 34:13A-1 et seq., by terminating bus drivers and subcontracting their work to a private company in retaliation for their decision to join a labor union, the Warren Hills Regional High School Education Association (Association). We conclude that PERC applied the correct legal standard and based its determinations on substantial credible evidence in the record. Therefore, we affirm.

A public employer has the managerial prerogative to contract with private companies for work previously performed by public employees. However, it is unlawful to discharge employees or take other adverse action against them in reprisal for union activity. N.J.S.A. 34:13A-5.4(a)(1) and (3). Therefore, the decision to contract out work may not be motivated by a desire to retaliate for, or discourage, union activity. See In re Twp. of Bridgewater, 95 N.J. 235 (1984).

To establish this unfair labor practice, a union must make a prima facie showing that protected activity by employees was a motivating factor for an employer's action. Id. at 242. Thereafter, "the burden shifts to demonstrate by a preponderance of the evidence that the same action would have taken place even in the absence of the protected activity." Ibid.

In this case, PERC adopted the credibility determinations and factual findings of the hearing examiner, who found the Board was motivated both by its desire to avoid negotiations with the Association as well as hostility toward the drivers' decision to organize. Furthermore, PERC accepted the hearing examiner's conclusion that the Board failed to prove it would have subcontracted the school bus service in the absence of that hostility. In making his determination, the hearing examiner cited the fact that the decision to subcontract was made immediately following the employees' vote for representation, the past practice of the school district not to subcontract, even during periods of economic hardship, and remarks of the superintendent of schools that exhibited a hostility to drivers becoming unionized.

 
Our review of PERC's decision is limited to determining whether it has been clearly demonstrated to be arbitrary and capricious. Flanagan v. Civil Serv. Dep't, 29 N.J. 1, 12 (1959). Following a careful review of the record, we conclude that PERC's October 28, 2004 decision is supported by substantial credible evidence. Therefore, for the reasons stated in that decision, we affirm.

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A-1747-04T5

December 22, 2005