NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0765-14T2

IN THE MATTER OF BOARD OF FIRE

COMMISSIONERS, FIRE DISTRICT NO. 

1, MONROE TOWNSHIP and MONROE 

TOWNSHIP PROFESSIONAL FIREFIGHTERS

ASSOCIATION, INTERNATIONAL

ASSOCIATION OF FIREFIGHTERS,

LOCAL 3170.

_________________________________________

Argued October 26, 2015 – Decided

Before Judges Lihotz, Fasciale and Nugent.

On appeal from the Public Employment 

Relations Commission.

Jonathan F. Cohen argued the cause for 

appellant Board of Fire Commissioners, Fire 

District No. 1, Monroe Township (Apruzzese, 

McDermott, Mastro & Murphy, P.C., attorneys; 

James L. Plosia, Jr., of counsel and on the 

brief; Mr. Cohen, on the brief).

Daniel J. Zirrith argued the cause for 

respondent Monroe Township Professional 

Firefighters Association, International 

Association of Firefighters, Local 3170 (Law 

Offices of Daniel J. Zirrith, L.L.C., 

attorneys; Mr. Zirrith, of counsel and on 

the brief).

Frank C. Kanther, Deputy General Counsel, 

argued the cause for respondent New Jersey 

Public Employment Relations Commission (Don 

Horowitz, Acting General Counsel, attorney; 

Mr. Horowitz, on the statement in lieu of 

brief). 

December 8, 2015

APPROVED FOR PUBLICATION

December 8, 2015

APPELLATE DIVISION
2 A-0765-14T2

The opinion of the court was delivered by

FASCIALE, J.A.D. 

Monroe Township (the Township) Board of Fire Commissioners, 

District No. 1 (the Board), appeals from a September 18, 2014 

final agency decision by the Public Employment Relations 

Commission (PERC) sustaining unfair practice charges filed by 

the Monroe Township Professional Firefighters Association, 

International Association of Firefighters, Local 3170 (Local 

3170), alleging that the Board violated the New Jersey EmployerEmployee Relations Act (the Act), N.J.S.A. 34:13A-1 to -43. 

Local 3170 argued the Board retaliated by firing full-time 

firefighters in District No. 1, after it lodged the unfair labor 

practice charges. The Board maintained the discontinuation of 

full-time firefighters in favor of using volunteers was designed 

to save taxpayer money for the Township. Applying the dual 

motivation test set forth by our 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 termination. PERC 

rejected as pretextual the Board's assertion that it fired the

firefighters as a cost saving measure. 

On appeal, the Board again asserts its managerial action 

fell within its right to assure fiscal responsibility. 
3 A-0765-14T2

Accordingly, the Board contends PERC had no authority to review 

the matter, and even if it did, it overstepped its remedial 

authority. 

We affirm PERC's determination and conclude 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. We hold, 

however, 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." Twp. of Bridgewater, supra, 95 N.J. at 237. 

The reinstatement of an aggrieved employee, therefore, does not 

forever preclude the public employer from making legitimate and 

non-retaliatory employment decisions. 

I.

The Act authorizes municipalities to create fire 

districts, each to be run by a five-member board of fire 

commissioners. There are three fire districts in the Township. 

The Board is the public employer for Fire District No. 1. Local 

3170 represents all Township paid firefighters and is an 

employee labor organization within the meaning of the Act.

By 1999, the Board had hired three full-time firefighters

in District No. 1: Michael Mangeri, David Shapter, and Joseph 
4 A-0765-14T2

Calella. In 2007, the Board added a per diem firefighter to 

comply with a regulation requiring that four firefighters battle 

certain fires. Calella later resigned due to a disability, and 

the Board replaced him with a per diem firefighter rather than a 

full-time, permanent career firefighter. Thereafter, the paid 

firefighting force in District No. 1 consisted of four 

firefighters: two full-time and two per diem. The per diem

firefighters were not members of Local 3170. 

In March 2008, James Grande, the president of Local 3170, 

attended a Board meeting and requested that the Board fill 

Calella's vacant full-time firefighter paid position. Although 

Commissioner Joseph Leatherwood stated the Board was not 

interested in filling the vacancy with a third full-time 

firefighter, President Grande pursued the request by engaging in 

informal discussions with various Board members on the subject. 

In June 2008, Board Chairman Charles DiPierro and Volunteer 

Chief Lonnie Pipero met with Grande, Mangeri, and Shapter and 

informed them that the Board had deliberated on the matter and 

had decided that it would not fill the vacant position. 

Local 3170 retained counsel, who wrote a letter to the 

Board advising it to cease from violating the Act and the Open 

Public Meetings Act, N.J.S.A. 10:4-6 to -21. Counsel requested 
5 A-0765-14T2

that the Board deal exclusively with Local 3170 as to filling 

the full-time paid vacancy. Chairman DiPierro responded:

The Board did not appreciate receiving [the] 

letter [from Local 3170's attorney] and that 

it was looking into the possibility of 

eliminating the career [firefighting] staff.

He also said that any future actions taken by the union's 

attorney would not help getting the third firefighter position 

filled.

In July 2008, Local 3170's counsel wrote to the Board 

expressing a desire to negotiate rather than litigate, but 

cautioned that Local 3170 might be left with no alternative 

other than filing unfair practice charges under the Act. The 

Board did not respond.

On October 13, 2008, Local 3170's counsel sent another 

letter reiterating its position. The Board, through counsel, 

arranged a meeting with Local 3170 members. The Board's counsel 

and Commissioners DiPierro and Perry attended on behalf of the 

Board and agreed to hire a third firefighter. The Board also 

invited Local 3170 members to attend the next Board meeting on 

November 19, 2008. The Board's counsel and DiPierro did not 

attend that meeting, at which Commissioner Robert LeBrun stated 

that the Board "had no intention of hiring a third permanent 

firefighter[,]" and that Local 3170 could "[g]o ahead and sue 

us, do what you have to do." 
6 A-0765-14T2

On November 20, 2008, Shapter talked to DiPierro, who 

advised that "the [Board] w[as] considering getting rid of all 

of the paid career staff so that they were not going to add a 

third career firefighter." On December 5, 2008, DiPierro also 

stated if the union president and attorney "[k]eep pushing 

issues with the hiring of the third man, the Board is thinking 

of pushing the union out of the station up to the other end of 

town." On December 28, 2008, without any explanation by the 

Board, Mangeri learned that another individual would be assuming 

his payroll functions. 

On January 13, 2009, counsel for Local 3170 informed the 

Board that unless the parties resolved their dispute, it would 

file "an unfair practice charge and grievance alleging that the 

Board has violated the Act and the parties' agreement by filling 

bargaining unit positions with part[-]time[,] non-unit members 

and threatening unit members for their exercise of rights 

guaranteed under the Act . . . ." 

On February 19, 2009, the Board continued threatening the 

future of the paid firefighting staff. For example, while 

Shapter, DiPierro, and a per diem firefighter were at the

firehouse, another volunteer firefighter commented that the 

television set was taken away and that "they got rid of the mail 

. . . ." DiPierro stated "there[ are] going to be a lot more 
7 A-0765-14T2

changes and this is the beginning of the end." The comment was 

corroborated by the per diem firefighter. 

On March 23, 2009, Local 3170 charged the Board with 

violating sections 5.4a(1), (3), and (5) of the Act, which 

provide in pertinent part:

a. Public employers, their 

representatives or agents are prohibited 

from:

 (1) Interfering with, restraining or 

coercing employees in the exercise of the 

rights guaranteed to them by this act.

. . . . 

 (3) Discriminating in regard to hire or 

tenure of employment or any term or 

condition of employment to encourage or 

discourage employees in the exercise of the 

rights guaranteed to them by this act.

. . . . 

 (5) Refusing to negotiate in good faith 

with a majority representative of employees 

in an appropriate unit concerning terms and 

conditions of employment of employees in 

that unit, or refusing to process grievances 

presented by the majority representative.

Local 3170 specifically alleged that the Board violated the Act 

"by unilaterally assigning bargaining unit work to nonbargaining employees and retaliating against Local 3170 through 

threats and intimidation." Local 3170 further asserted that the 

Board "took retaliatory action toward[s] Local 3170 and 
8 A-0765-14T2

threatened to dissolve the paid career staff if Local 3170 

continued to assert its rights under the Act." 

On May 8, 2009, for the first time since full-time 

firefighters were hired, the weekday paid-firefighter shift was 

covered by volunteer firefighters. On May 22, 2009, DiPierro 

stated to Shapter that "your union and career [staff] are 

putting up a wall between the [Board]." DiPierro continued, 

stating "[t]his is not good for your future here . . . you know 

that your contract is up December 31, [2009] and that might be 

it." A per diem firefighter corroborated that DiPierro made 

these statements "in a threatening and demeaning tone." 

At this time, Mangeri was working light duty because of an 

injury. On May 29, 2009, the day after the Board and Local 3170 

members attended an exploratory conference held by PERC, the 

Board eliminated Mangeri's light-duty eligibility status,

indicating that he could return to work after he was cleared by 

the Board's health care provider. On June 17, 2009, the Board 

passed a resolution repealing the Township's light-duty policy.

On December 16, 2009, before a regularly scheduled Board 

meeting, Volunteer Deputy Fire Chief Scott Kivet overheard

Commissioner Vincent Dilieto and Chief Pipero discussing the 

termination of the paid firefighting staff. Commissioner 

Dilieto suggested "it might be done tonight" and Chief Pipero 
9 A-0765-14T2

told Kivet "nothing [would] stop it." Dissolution of the paid 

firefighting staff, however, was not discussed at the Board 

meeting.

On December 29, 2009, the parties met to negotiate a new 

firefighting services contract. Local 3170 made its proposals, 

which DiPierro and Commissioner Michael Costello advised would 

be presented to the Board. On January 14, 2010, DiPierro

requested that Mangeri bring the 2009 firehouse logbook to the

Board meeting scheduled for January 20, 2010. Three days later, 

he also directed Mangeri to "forward all programs and passwords 

on all [firehouse] computers to the Board." 

On January 20, 2010, the Board approved District No. 1's

2010 budget. The Board stated during the meeting that "no 

reduction in force [was] reflected in the budget and . . . money 

to compensate the career firefighters and per diem firefighters 

was included in the 2010 budget." DiPierro reassured those in 

attendance that "money for paid staff was in the budget" and it 

was "the Board's intention . . . to provide fire protection with 

career staff, volunteers[,] and mutual aid." Commissioner 

LeBrun also spoke, noting there was nothing "on the agenda to 

dissolve the career staff." 

The next day, DiPierro contacted Mangeri and Shapter and 

instructed them to keep a more detailed logbook. On February 1, 
10 A-0765-14T2

2010, Mangeri contacted DiPierro and Costello to schedule a 

second contract negotiation session. The parties never met 

again to discuss a successor agreement. 

The Board held its next scheduled meeting on February 17, 

2010. Two days prior, it posted a notice informing the public 

the Board would "consider personnel matters" at the meeting and 

that "[o]fficial action may be taken . . . ." At the meeting, 

the Board passed a resolution (4-0) dissolving the full-time 

paid firefighting staff in District No. 1.

1 The resolution 

stated, in pertinent part:

WHEREAS; the Board has determined . . . 

the costs of maintaining full-time paid 

firefighters to supplement the fire 

protection services provided by [District 

No. 1's] highly[-]skilled and dedicated 

volunteer firefighters exceed the benefits 

derived and is economically burdensome and 

unwarranted in these times of severe 

economic hardship and distress; and

WHEREAS; Termination of the full[-]time 

paid staff will result in substantial cost 

savings to [District No. 1] and will enable 

[District No. 1] to reduce its budget and 

thereby result in a lower fire district tax 

rate.

On March 16, 2010, Local 3170 amended its unfair practice 

charge, providing "specific examples of retaliatory acts by the 

Board and alleging . . . the retaliation intensified since the 

 

1 Commissioner Perry abstained from voting. 
11 A-0765-14T2

filing of the [original] charge, culminating in the termination 

of the full[-]time firefighting career staff." 

The Board denied the charges, maintaining that it acted

within its discretion to dissolve the paid fire department. The 

Board contended that it did so as a cost saving measure, rather 

than in retaliation for Local 3170's undisputed protected 

activity.

The hearing examiner, who conducted hearings on seventeen

days over twenty-three months, issued a comprehensive seventynine page opinion, and concluded that the Board violated the 

Act. 

Regarding violations of N.J.S.A. 34:13A-5.4(a)(1) and (5), 

the hearing examiner concluded that the Board failed to 

negotiate in good faith to fill the third, full-time, paid 

firefighting position. The hearing examiner found the 

firefighters' interests "in preserving the weekday, daytime 

firefighting duties for themselves," outweighed the Board's 

motive "to operate the paid shift at a reduced cost," without 

reorganizing or changing the way it delivered fire services to 

District No. 1 during the day. Citing City of Jersey City v. 

Jersey City Police Officers Benevolent Association, 154 N.J.

555, 580-81 (1998), the hearing examiner concluded this activity 

was "mandatorily negotiable" and could not be performed without 
12 A-0765-14T2

affording "the union . . . an opportunity to negotiate an 

acceptable alternative, one that would not result in job loss 

and [a] reduction in union membership." 

Regarding violations of N.J.S.A. 34:13A-5.4(3) and (4), the 

hearing examiner concluded Local 3170 proved "by a preponderance 

of the evidence [i]n the record that protected conduct was a

substantial or motivating factor in the Board's decision to 

dissolve the paid fire department." The hearing examiner found 

Mangeri and Shapter, individually and through Local 3170 

president Grande, requested, on multiple occasions, that the 

Board fill the third firefighter position with a full-time 

career firefighter instead of using per diem firefighters. 

These requests began in 2008 and continued until 2010. 

The hearing examiner found that the Board acted with 

hostility. We quote at length from pertinent parts of the 

hearing examiner's findings setting forth the substantial 

credible evidence of retaliation and anti-union animus: 

It was undisputed by the parties that 

prior to 2008 there was labor peace in Fire 

District [No.] 1. During that time, the 

parties had a friendly working relationship 

and cooperatively worked together to resolve 

issues as they arose. Their relationship 

began to deteriorate when Local 3170's 

attorney began writing to the Board and 

pressing the issue of filling the third 

firefighter position with a full-time 

employee who would be a member of the 

bargaining unit. As early as July 16, 2008,
13 A-0765-14T2

. . . the Board read to the public a letter 

it had received the previous day from 

counsel to Local 3170 regarding the filling 

of the vacant position. After the meeting, 

Chairman DiPierro warned President Grande 

that more letters from the Local's attorney 

would only aggravate the situation and could 

lead to the elimination of the paid staff.

The day after Shapter attended the 

November 19, 2008 Board executive session 

where Commissioner LeBrun remarked, "go 

ahead and sue us, do what you have to do," 

[Chairman] DiPierro advised Shapter that the 

Board was considering getting rid of all of 

the paid firefighters. About two weeks 

later on December 5th, DiPierro further 

cautioned Shapter that if the union kept 

pushing the issue of hiring a third fulltime firefighter, the Board will push "the 

union out of the station up to the other end 

of town."

On January 1, 2009, payroll duty was 

taken away from Mangeri without explanation. 

He was informed of the change via email 

instead of personally by a Board liaison as

had been done in the past.

On January 13, 2009, Local 3170's 

attorney apprised the Board that it would be 

filing an unfair practice charge if it did 

not cease using non-bargaining unit 

employees to perform bargaining unit work. 

A month later, on February 19[, 2009], 

Chairman DiPierro warned . . . Shapter that 

"this is the beginning of the end."

The Board's hostility and acts of 

retaliation intensified and escalated after 

Local 3170 filed its unfair practice charge 

. . . . Setting a tone, [Chairman] DiPierro 

stopped visiting the firehouse as often and 

ceased eating lunch with the paid 

firefighters.
14 A-0765-14T2

On May 8, 2009, while Mangeri was on 

light[-]duty assignment and Shapter was off 

from work, the Board operated the day shift 

exclusively with volunteer firefighters. It 

was the first time since the establishment 

of the paid force that the weekday, day 

shift was covered by volunteers. Also, in 

May 2009, the Board became less responsive 

and more exacting in approving requested 

time-off by the firefighters. Sometime 

before May 20, 2009, the Board took away 

scheduling duties from Mangeri and Shapter. 

They were not given an explanation as to why 

the duties were assigned to a secretary and 

no one from the Board informed them of the 

change. The secretary told them.

President Grande and . . . Shapter 

attended the May 20[, 2009] meeting of the 

Board. During the public portion of the 

meeting, Grande asked the Board why no paid 

staff was used on May 8[] and why the 

scheduling duties were taken away from 

Mangeri and Shapter. Two days later, on May 

22[, 2009 Chairman] DiPierro told Shapter 

. . . "[y]our union and career [staff] are 

putting a wall between the [Board]" and 

warned him that[] "[t]his is not good for 

your future here . . . you know that your 

contract is up [o]n December 31, [2009] and 

that might be it." [Chairman] DiPierro 

exhibited further hostility toward Local 

3170 by rhetorically asking Shapter, "[w]ho 

is he to question the Board," referring to 

union President Grande.

On May 28, 2009, the Board expended 

resources in defending itself against Local 

3170's unfair practice charge by attending 

an exploratory conference at the 

[Commission] office in Trenton. The next 

day, Mangeri was informed that he could no 

longer work light[-]duty assignments 

effective June 1[, 2009] and . . . if he had 

any questions he should call the Board 

attorney. Mangeri was given no explanation 
15 A-0765-14T2

for that decision and was abruptly pulled 

from projects he was working on while on 

light duty. Two weeks later, on June 17[, 

2009], the Board rescinded the light[-]duty 

policy which was enacted only the year 

prior. Though Local 3170 was included in 

the process of developing the policy, it 

received no notice from the Board that it 

was going to be rescinded.

Sometime in late June, the secretary to 

the Board informed Mangeri and Shapter that 

effective July 1, 2009, the Board will 

eliminate the fourth firefighter on the day 

shift. No explanation was provided. The 

reasons that gave rise to the Board adding 

the fourth firefighter had not changed or 

diminished.

At the one and only negotiations 

session for a new contract[,] held on 

December 29, 2009, as a precondition to 

negotiating, Commissioner Costello demanded 

that the union justify why the Board should 

continue employing paid firefighters. Even 

Chairman DiPierro (who was there) testified 

that Costello's comment made everyone 

uncomfortable. At that session, the Board 

did not make any proposals nor did it 

respond to the proposals presented by Local 

3170.

The Board did not pay the firefighters 

their longevity or inspector's stipend in 

January 2010[,] as required under the 

contract and past practice. The Board 

ignored numerous requests for payment made 

by Mangeri and Grande, and did not pay the 

firefighters until three months after they 

had been terminated in June 2010. Also, in 

January 2010, the Board added thirteen new 

requirements to keeping the logbooks 

following a particularly well-attended Board 

meeting in which the public demanded that 

the paid firefighters be retained.
16 A-0765-14T2

. . . .

The last and ultimate act of 

retaliation by the Board was terminating the 

paid firefighters eleven months after their 

union had filed an unfair practice charge 

with [the Commission]. [Chairman] 

DiPierro's comments on [E]lection [D]ay

regarding the firefighters' wage proposal in 

negotiations (citing it as the reason for 

their termination) are revealing. Though 

they were made after the decision to 

eliminate the firefighters, the remarks 

demonstrate a disposition hostile to 

participating with unions in the give[-

]and[-]take process required by collective 

negotiations.

The hearing examiner also rejected as pretextual the Board's 

justification for dissolving the paid full-time fire department 

because of "hard economic times" and a "desire[] to pass along 

the cost savings to the taxpayers . . . in the form of tax 

relief." 

The Board provided insufficient 

evidence [that] . . . the taxpayers of Fire 

District [No.] 1 were losing their 

properties and/or jobs in unprecedented, 

record numbers. The Board itself 

consistently carried a budget surplus of 

over $1,000,000 per year, which trended 

upwards in the years relevant to this case 

(2008-2010). The Board's accountant 

admitted . . . the Board was never in 

financial distress. There were no "times of 

severe economic hardship and distress" 

established on the record.

The taxpaying[-]public's sentiment to 

keep a daytime paid force was clear to the 

Board. Those taxpayers who spoke at the 

January 20, 2010 Board meeting made it 
17 A-0765-14T2

clear. If the Board had any doubt about 

what the taxpayers of District [No.] 1 

desired after the meeting because those who 

spoke were not representative of the 

taxpayers at large, that doubt was removed 

when the 2010 budget was approved by the 

voters on February 17, 2010. The 2010 

budget included money to pay the full-time 

and per diem firefighters for another year. 

It is specious for the Board to claim that 

economic hardship drove its decision.

If economics were of such a concern, 

one must wonder why the Board decided to 

terminate the firefighters only a few days 

before it would know whether or not the 

budget passed and therefore know whether or 

not it had the money to continue to retain 

them. In a similar vein, once the Board 

knew the budget passed, there was no doubt 

what the citizenry desired or what District 

[No. 1] could afford, yet the Board did not 

rescind the resolution terminating the 

firefighters.

The Board's proffered motive of 

reducing taxes is equally unbelievable. 

Firstly, the Board knew there would be no 

tax relief in 2010 because the tax rate for 

that year was already set based upon a 

budget that included compensation for the 

paid firefighters. Secondly, it offered to 

pay Fire District [No.] 3 substantially the 

same amount of money for fire protection in 

2010 as the cost of retaining its own paid 

force. Thirdly, the Board in fact spent 

most of the savings derived from terminating 

the paid firefighters on a new vehicle for 

the Fire Chief and radios. The Board did 

not act as though it was trying to pass the 

savings onto the taxpayers of the fire 

district. Its behavior does not support a 

finding that reducing taxes was a genuine 

motive behind eliminating the paid fire 

force.
18 A-0765-14T2

I also find the Board's reasons to be 

pretextual because it never once mentioned 

the possibility of dissolving the paid 

department because of financial concerns to 

Grande, Mangeri[,] or Shapter. The parties 

communicated on a number of issues 

throughout 2009. The subject did not even 

come up as late as December 29, 2009[,] when 

the parties had a contract negotiations 

session which lasted about an hour and a 

half.

Neither Local 3170, Mangeri[,] nor 

Shapter were given any notice of the Board's 

decision to terminate them. The first that 

they learned that they would be no longer 

employed because of financial reasons was 

the public reading of the resolution 

terminating them. The abruptness and lack 

of transparency surrounding their 

termination erodes the credibility of the 

Board's proffered reasons.

Even the Board's treatment of Mangeri 

and Shapter after it terminated them 

illustrates that the decision was predicated 

upon hostility and ill-will rather than 

unbiased business considerations. During 

the two weeks Mangeri and Shapter were still 

working at the firehouse before their 

termination became effective, only 

Commissioner Perry spoke to them. Mangeri 

and Shapter were not treated by the Board as 

employees customarily . . . who are severed 

due to economic reasons as opposed to 

performance issues. They were not given an 

exit interview or advised of their postemployment [Consolidated Omnibus Budget

Reconciliation Act] rights, nor were they 

informed on where to return keys, 

uniforms[,] and equipment.
19 A-0765-14T2

As a result of the overwhelming evidence establishing the 

Board's violation of the Act, the hearing examiner ordered the 

Board to post a notice, which provided in pertinent part: 

WE WILL offer to reinstate Firefighters 

Michael Mangeri and David Shapter who were 

terminated effective March 5, 2010, with 

substantially the same hours of work and 

employment responsibilities as they had

immediately prior to their termination.

WE WILL make the terminated employees 

who accept offers of reinstatement whole for 

all salary and benefits due from March 5, 

2010 to the present, less mitigation, with 

interest at the rate set by Court rules.

WE WILL in the event the Board 

determines to use at least three (3) 

firefighters on the weekday, day shift, 

negotiate in good faith with Local 3170 over 

the filling of the third paid firefighter 

position. 

The Board appealed to PERC contending the hearing examiner

erred by (1) determining that it terminated paid firefighters in 

retaliation for charges brought by Local 3170, and (2) 

concluding that its proffered reason, i.e., to cut costs, was 

pretextual. 

On September 18, 2014, PERC adopted the hearing examiner's

findings of fact concluding that the Board violated N.J.S.A.

34:13A-5.4(1), (3), (4), and (5). PERC rejected the Board's 

argument that the hearing examiner's finding of anti-union 

animus was unsupported by the facts, noting the hearing 
20 A-0765-14T2

examiner's conclusion was largely "based upon credibility 

determinations of the witnesses, [which] include[d] both direct 

and circumstantial evidence of hostility to protected activity." 

PERC also rejected the Board's financial-hardship defense, 

agreeing with the hearing examiner's conclusion that it was 

pretextual "as the Fire District, based on the Board's own 

witness and accountant, had never been in financial distress." 

In addition to the mandated posting, PERC required the 

Board to take the following remedial steps: "[o]ffer to 

reinstate" Mangeri and Shapter "with substantially the same 

hours of work and employment responsibilities as they had 

immediately prior to their termination"; make Mangeri and 

Shapter whole, if they accept the offers, "for all salary and 

benefits due from March 5, 2010 to the present, less mitigation, 

with interest at the rate set by Court rules"; and negotiate 

with Local 3170 in good faith for the placement of a third paid 

firefighter if "the Board determines to use at least three . . . 

firefighters on the weekday, day shift[.]" 

On appeal, the Board argues (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 
21 A-0765-14T2

that of the Board; and (3) PERC overstepped its remedial 

authority, implying at oral argument before us that the Board 

should not be required to indefinitely employ the reinstated

employees. 

II.

The scope of our review of PERC's interpretation of the 

Act, the statute it is charged with enforcing, is limited. "In 

the absence of constitutional concerns or countervailing 

expressions of legislative intent, we apply a deferential 

standard of review to determinations made by PERC." Jersey City 

Police Officers Benevolent Ass'n, supra, 154 N.J. at 567. 

PERC's determination must be upheld unless the party appealing 

it shows that it is clearly arbitrary and capricious. Id. at 

568. As to PERC's findings of fact, our review is similarly 

circumscribed; so long as there is sufficient credible evidence 

to support its conclusions, we must uphold PERC's findings. 

Twp. of Bridgewater, supra, 95 N.J. at 245-46. Here, the Board 

has not shown that PERC's decision is arbitrary and capricious.

We begin by addressing the Board's contention that 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. The Board primarily argues that Chairman 
22 A-0765-14T2

DiPierro's anti-union animus was not shared by the rest of the 

Board members, and that DiPierro acted on his own behalf, rather 

than on behalf of the Board. 

Pursuant to the Act, it is "unlawful [to] discharge or 

otherwise [take an] adverse public employer action against a 

worker because of his or her union activity." Twp. of 

Bridgewater, supra, 95 N.J. at 237 (citing N.J.S.A. 34:13A5.4(a)(1) and (3)). "Public employers still retain the right, 

however, to discharge a worker for a legitimate business reason, 

unrelated to the employee's union activities." Ibid. 

Our Supreme Court has explained that under the Act, there 

are two types of cases. First, there are "pretext" cases in 

which "an employer fires an employee for having engaged in union 

activities, with no other basis for the discharge[.]" Id. at 

241. In such cases, it is clear from the evidence "that the 

asserted justification is a sham, or was not in fact relied 

upon[,]" and therefore, "[s]ince no legitimate business reason 

exists, there is in fact no dual motive." Ibid. In pretext 

cases, the employer's affirmative defense of legitimate business 

justification is deemed to be "wholly without merit." Id. at 

244 (citation and internal quotation marks omitted). 

The second kind of case is dual motive. In Township of 

Bridgewater, the Court set forth the framework for analyzing 
23 A-0765-14T2

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 antiunion 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.

[Id. at 242 (citations omitted).] 

While often a fine line, the distinction between pretext 

cases and dual motive "cases rests upon the differing weight 

that is attributed to the employer's explanation when examining 

the motivations behind a discharge." Id. at 244 (citation and 

internal quotation marks omitted). Where an "affirmative 

defense has at least some merit, a dual motive may exist and the 

issue becomes one of the sufficiency of proof necessary for the 
24 A-0765-14T2

employer's affirmative defense to be sustained."2 Ibid.

(citation and internal quotation marks omitted).

Here, the hearing examiner determined that this was a dual 

motive case that warranted application of the Township of 

Bridgewater framework. The Board concedes that the Township of 

Bridgewater framework applies, but argues that PERC erred in 

applying the test to the facts of this case. We see no merit to 

that contention and conclude that there was no error in the 

hearing examiner's findings of fact and conclusions of law. 

A substantial inference of anti-union animus pervaded Board 

activity during the relevant timeframes. DiPierro's disparaging 

comments were made in his capacity as Chairman of the Board. He 

told Grande, that "the Board . . . was looking into the 

possibility of eliminating the career staff." DiPierro 

reiterated a similar threat to Shapter, telling him "if the 

union kept pushing the issue of hiring a third full-time 

firefighter, the Board w[ould] push 'the union out of the 

 

2 We note that this matter could have been analyzed as a 

pretext case, given the Board's baseless cost savings defense 

and strong anti-union animus. However, because the parties have 

agreed that the dual motive framework, set forth in Township of 

Bridgewater, applies, and because we reach the same result under 

either approach, we analyze the issues under the dual motive 

rubric, as did the hearing examiner and PERC. Our opinion, 

however, should not be construed as agreeing or disagreeing with 

the threshold determination that this is a dual motive case. 
25 A-0765-14T2

station up to the other end of town.'" The Board acted without 

notice or input from Local 3170, repealed the light[-]duty

policy, and stripped Mangeri from the administrative duties he 

had performed since 2004. The approval of requested time-off 

and longevity payouts were also delayed with little to no 

explanation by the Board. 

Moreover, the Board has not met its "burden to demonstrate 

that the same action would have taken place even in the absence 

of the protected conduct." Comite Organizador de Trabajadores 

Agricolas (COTA) v. Molinelli, 114 N.J. 87, 101 (1989) (citation 

and internal quotation marks omitted). The Board suggests, 

DiPierro's comments aside, three Board members sought to pursue 

tax savings by using volunteer firefighters in District No. 1. 

We reject the Board's contention that the other voting 

commissioners did not share DiPierro's anti-union animus when 

they terminated Mangeri and Shapter.

3 There is substantial 

credible evidence in the record supporting the conclusion that 

the Board's proffered business reason for terminating the full-

 

3 In the discrimination context, applying a similar burdenshifting framework, we have held that "discriminatory comments 

made by one with input into the decision-making process are not 

stray remarks." Grasso v. W. N.Y. Bd. of Educ., 364 N.J. Super.

109, 118 (App. Div. 2003) (citing Abramson v. William Patterson 

Coll. of N.J., 260 F.3d 265, 286 (3d Cir. 2001)).
26 A-0765-14T2

time paid firefighters was pretextual. The hearing examiner

stated in pertinent part that 

[a]ccording to the Board's own witness and 

accountant, . . . Fire District [No.] 1 has 

never been in financial distress. The 

surplus for budget year 2008 was $1,070,960. 

The surplus as of December 31, 2009 was 

$1,405,781, up almost $335,000. The total 

assessed property valuation in District

[No.] 1 went up about $18,000,000 from 2008 

to 2009 and increased another $3,000,000 

from 2009 to 2010. The proposed fire tax 

rate in District [No.] 1 for 2010 was $.139, 

down from $.16 from the preceding year 

(2009). Among the three Fire Districts in 

Monroe Township, District [No.] 1 

consistently had the lowest fire tax rate 

before the creation of, during[,] and after 

the elimination of the part[-]paid fire 

department. 

The 2010 budget approved by the voters 

included $210,000 for salary and wages for 

the two career firefighters and two per 

diems. When factoring in the money also 

budgeted for benefits and considering that 

some of the money was spent for a small 

portion of the year, there was still over 

$200,000 in savings that could be used to 

reduce taxes in future budget years. 

The following budget year, 2011, the 

Board purchased a new vehicle for the Fire 

Chief costing $70,000 and new radios for 

$90,000. It also purchased a new brush 

truck for $140,000 with voter approval. 

Even with those purchases, the Board was 

able to reduce the tax rate by $.03 for 2011 

by using its reserves which had been 

increased by the money saved from 

eliminating the paid firefighters. If the 

Board had[ not] made the purchases, it could 

have passed on even greater tax savings to 
27 A-0765-14T2

its residents by using that money to further 

reduce the tax rate.

 

Here, the record does not support the Board's argument that 

serious economic considerations existed at the time the Board 

dissolved its full-time paid firefighting staff. Our Supreme 

Court has explained that "once a discharged employee makes out a 

prima facie case of anti-union animus, the employer has the 

burden of linking the timing of the discharges closely with 

economic decline." Id. at 102. District No. 1 operated under a 

large surplus during the years leading up to 2010, and earmarked 

money in its 2010 budget specifically for Mangeri's and 

Shapter's salaries. Once the career firefighters were 

terminated, the Board exhibited no commitment to fiscal 

responsibility, purchasing expensive radios and a new $70,000 

vehicle for the Fire Chief. Further, the Board did not replace 

its career firefighters with volunteers for 2010, its main 

contention for saving taxpayer money. Rather, it contracted 

with District No. 3 to provide its weekday, day fire services 

for an equivalent amount earmarked in the 2010 budget to 

compensate the full-time paid staff.

Finally, the Board's reliance on Borough of Keyport v. 

International Union of Operating Engineers, Local 68, 222 N.J.

314 (2015) is misplaced. In Borough of Keyport, the 

municipalities provided detailed financial information evincing 
28 A-0765-14T2

a financial crisis. Id. at 320-26. For instance, in one 

municipality there existed a surplus of only $6,000 and the 

municipality "faced increased healthcare, pension, and labor 

costs without an increase in tax revenues." Id. at 321. 

District No. 1, however, maintained a surplus of well over 

$1,000,000 in 2008, which increased by approximately $350,000 

the following year. Property values in the Township also rose 

during the same timeframe. Further, each of the municipalities 

in Borough of Keyport submitted layoff plans to PERC for its 

approval. Id. at 321, 324, 326. Here, the Board did not. 

There was no credible evidence of anti-union animus in 

Borough of Keyport. The issue, as addressed by the Supreme 

Court, focused on whether the parties were obligated to 

negotiate the tangible employment decisions made prior to their 

implementation. Here, the Board does not challenge that portion 

of PERC's decision. As the Supreme Court pointed out, "an 

artificial 'fiscal crisis' cannot outweigh important employee 

work and welfare interests." Id. at 346.

III.

Next, the Board maintains that it alone has the authority 

to establish and regulate fire districts, including whether 

services are provided by paid, part-paid, or volunteer 

firefighters. Contrary to its contention, PERC did not usurp or 
29 A-0765-14T2

otherwise supplant the Board's statutorily prescribed authority 

to regulate District No. 1's fire department. 

As PERC properly noted, many of the "cases cited by the 

Board . . . pre-date the Act and do not involve improper or 

illegal motives for personnel actions." The Board misconstrues 

two fundamentally different issues. The Board is correct that 

under N.J.S.A. 40A:14-81.1(a), 

[t]he commissioners of any fire district 

may, by resolution, establish paid positions 

within the fire department, or for the fire 

district, as such position shall be 

determined by the commissioners to be 

required for the purposes of the fire 

district. The commissioners shall, by 

resolution, appoint persons to, determine 

the terms of, fix the compensation for, and 

prescribe the powers, functions and duties 

of all paid positions so established. 

Moreover, under N.J.S.A. 40A:14-70.1(b), "[t]he board of fire 

commissioners of a fire district not having a paid or part-paid 

fire department and force may contract with a volunteer fire 

company or companies for the purpose of extinguishing fires, 

upon those terms and conditions as shall be deemed proper." 

However, recognizing that the fire commissioners have such 

power, it does not follow that they are thereby granted the 

ability to engage in unlawful retaliation to protected union 

activity.
30 A-0765-14T2

Empowered by the Legislature, PERC is explicitly authorized 

to regulate the tangible employment decisions made by a public 

employer. See N.J.S.A. 34:13A-5.2 (granting PERC remedial 

authority to "make policy and establish rules and regulations 

concerning employer-employee relations in public employment 

relating to dispute settlement, grievance procedures and 

administration including enforcement of statutory provisions"). 

Nothing in PERC's findings or conclusions prevented the Board 

from lawfully regulating District No. 1's fire department, 

including how it chooses to provide fire services and whether or 

not its firefighters should be compensated. 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. PERC acting under its statutory authority to 

enforce the Act is not a usurpation of the Board's authority. 

IV.

We reject the Board's final challenge that PERC abused its 

discretion by ordering the Board to take affirmative steps to 

offer Mangeri and Shapter reinstatement as firefighters with 

back pay and benefits and, in the event the Board determines to 

use at least three firefighters, to negotiate in good faith with 

Local 3170. 
31 A-0765-14T2

Contrary to the Board's contention, the remedy of 

reinstating employees wrongfully discharged under the Act has 

been upheld under PERC's broad remedial authority. See Galloway 

Twp. Bd. of Educ. v. Galloway Twp. Ass'n of Ed. Sec'ys, 78 N.J.

1 (1978). In Galloway Township, the Supreme Court held that the 

authority to order reinstatement and back pay to an aggrieved 

claimant "is necessarily subsumed within the broad remedial 

authority the Legislature has entrusted to PERC." Id. at 9-10; 

see also Maywood Bd. of Ed. v. Maywood Ed. Ass'n, 168 N.J. 

Super. 45, 63 (App. Div.), certif. denied, 81 N.J. 292 (1979). 

The Legislature has empowered PERC with "broad authority 

and wide discretion" based on the agency's expertise and 

knowledge in this "highly specialized area of public life." In 

re Hunterdon Cnty. Bd. of Chosen Freeholders, 116 N.J. 322, 328

(1989). We conclude there was no abuse of that authority as to 

the remedial remedy imposed by PERC. Certainly, its decision 

does not preclude the Board from taking any future action, 

including termination, for legitimate, non-retaliatory reasons. 

Affirmed.