IN THE MATTER OF GAETANO ANTONIELLO, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1994-05T31994-05T3

IN THE MATTER OF

GAETANO ANTONIELLO, et al.

Appellants.

_______________________________

 

Argued May 16, 2007 - Decided June 14, 2007

Before Judges Wefing and C.S. Fisher.

On appeal from a Final Decision of The

Merit System Board, OAL No. CSV-5695-03.

James M. Cooney argued the cause for appellants

Gaetano Antoniello et al. (Weissman & Mintz, attorneys; Mr. Cooney, on the brief).

Rachel Davis argued the cause for respondent

City of East Orange Water Commission

(Schwartz Simon Edelstein Celso & Kessler,

attorneys; Stefani C. Schwartz, of counsel

and on the brief; Joshua I. Savitz, on the

brief).

Stuart Rabner, Attorney General, attorney

for respondent The Merit System Board, did

not participate in argument but filed a

statement in lieu of brief (Pamela N.

Ullman, Deputy Attorney General, on the

statement).

PER CURIAM

Petitioners, all of whom are former employees of the East Orange Water Commission, appeal from a Final Decision of the Merit System Board determining that their layoffs (or in the case of certain employees, demotions in lieu of layoff) in March 2002 were made in good faith, for reasons of economy and efficiency. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Appellants were members of the Communications Workers of America ("CWA"), and the terms of their employment were subject to a collective bargaining agreement in effect at the time they were laid off. Article VI of this agreement provided:

It is recognized and agreed that the Board possesses the sole right and responsibility to operate the facilities and departments covered by this Agreement, and that all management rights repose in it, except as same may be expressly qualified by the provisions of this Agreement. These rights include but are not limited to: selection and direction of its employees; to hire, promote, transfer, assign, and discharge, or take other disciplinary action against employees; to relieve employees from duties because of lack of work or for other legitimate reasons; to determine the amount of overtime to be worked; to maintain the efficiency of the government operations entrusted to it; to make reasonable and binding rules which shall not be inconsistent with this Agreement; to determine the methods, mean and personnel by which such operations are to be conducted; to introduce new or improved methods or facilities; and to contract out for goods or services. It is agreed that the Board may take whatever actions may be necessary to carry out the mission of the facility or department in situations of emergency.

This language, however, was modified by paragraph 7 of Article VII.

In the event of layoff of employees, an employee shall be laid off by job classification according to his seniority in such job classification, if all other factors, including satisfactory work and ability, (as determined by the Board) are equal. The Union shall be given notice of proposed layoffs, and opportunity to discuss the layoffs, with the Board or its designee.

It is clear from the record before us that East Orange during the time in question was experiencing severe financial difficulties, and in 1999 its financial affairs came under the supervision of the Local Finance Board pursuant to the Local Government Supervision Act of 1947, N.J.S.A. 52:27BB-1 to -100. The municipality's various attempts to stanch its mounting deficits were not successful, and it submitted several layoff plans to the Department of Personnel for approval. The Department of Personnel approved the Commission's proposed layoff plan in January 2002, and it was implemented in March 2002. Prior to this implementation, the Commission met on several occasions with representatives of the CWA to explain the grim financial outlook. Although the CWA made several alternate recommendations to the Commission, they were not deemed feasible alternatives in light of fiscal constraints.

Petitioners filed appeals with the Merit System Board and the matters were transferred to the Office of Administrative Law, where they were assigned to Administrative Law Judge Reiner. After a period of discovery, the Commission moved for summary decision. Administrative Law Judge Reiner granted the motion, and the Merit System Board agreed and upheld the layoffs.

In their appeal to this court, petitioners make two arguments: that they should have received a plenary hearing on their claim that the layoffs were the product of bad faith on the part of the Commission and that they presented sufficient evidence to defeat the Commission's summary disposition motion. We reject both propositions and affirm.

We note, first, the standard governing our review of this matter. A final decision of an administrative body such as the Merit System Board should not be disturbed on appeal unless it is arbitrary, capricious or unreasonable. Karins v. City of Atlantic City, 152 N.J. 532, 540 (1988). There are four questions to be considered by a reviewing court:

(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Ibid. (citations omitted).]

Appellants had the burden to establish bad faith on the part of the Commission. Greco v. Smith, 40 N.J. Super. 182, 189 (App. Div. 1956); Chirichello v. Dept of Civil Service, 31 N.J. Super. 404, 409 (App. Div. 1954); Schnipper v. North Bergen Tp., 13 N.J. Super. 11, 14-15 (App. Div. 1951). Appellants' arguments, however, rest only on speculation, not admissible evidence.

A motion for summary disposition may not be defeated merely by an allegation of the existence of bad faith. The party opposing the motion must point to factual evidence which would support an inference of the existence of bad faith. Criticisms of the Commission's collection efforts and claims of subsequent hirings, without any concrete factual information, are entirely insufficient. The Commission presented detailed information about its financial predicament and the anticipated cost savings over three years from these layoffs. Appellants did not present, either to the Administrative Law Judge or to this court, a factual basis which would warrant denying the Commission's motion. The Administrative Law Judge correctly viewed appellants' allegations in light of the standard governing her decision. Brill v. Guardian Life Insurance Co., 142 N.J. 520, 540 (1995) (noting that "[w]hen the evidence is so one-sided that one party must prevail as a matter of law, the trial court should not hesitate to grant summary judgment").

The order under review is affirmed.

 

At various points in the record, appellants' former employer is referred to as the East Orange Water Commission and at other points as the East Orange Water Department. For purposes of this opinion we adopt appellants' usage of Commission.

(continued)

(continued)

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A-1994-05T3

June 14, 2007