On March 1, 2024 the Public Employment Relations Commission issued a decision in the matter of City of Newark, (Respondent or City) v. Local 617, Workers United SEIU, (Charging Party or Local), dismissing the Local’s unfair practice charge against the City of Newark. The charge alleged that the City discharged per diem sanitation truck driver, Muta El-Amin, in retaliation for his protected activity, in violation of section 5.4a(3) and (5) of the New Jersey Employer-Employee Relations Act, N.J.S.A 34:13A-1, et seq. (Act).

The Hearing Officer found that the Local did not establish the El-Amin’s discharge violated the Act. The Charging Party failed to make the required showing that El-Amin’s protected activity was a motivating factor for his discharge. Applying the burden-shifting framework outlined in In Re Bridgewater Tp., the Charging Party is required to establish by a preponderance of the evidence that the employee’s protected activity was a “motivating factor or substantial reason” in the employer’s decision to impose an adverse action.

In this matter, the timeline of events is critical, with El-Amin’s discharge letter was ready to serve before any alleged protected activity occurred, casting doubts on claims of retaliation. Furthermore, El-Amin’s criticism of the City at a Union meeting in July 2020 did not meet Bridgewater criteria because the Local failed to produce evidence that the City was aware of the protected activity. Moreover, the Hearing Examiner found that the prolonged period of time between El-Amin’s protected conduct at a staff meeting in February 2019 and his eventful discharge in August 2020 was insufficient to support an interference of unlawful motivation by the City. In addition, the failure to promote El-Amin from per diem status was not supported by relevant comparative evidence and the absence of similar complaints from other employees.

Instead, El-Amin’s chronic absenteeism emerged as the most immediate and causally linked factor to his dismissal, supported by his disciplinary history. Ultimately, due to the lack of compelling evidence establishing a nexus between El-Amin’s protected activity and his termination, Local’s charges against the City were dismissed.

Gregory J. Franklin of Cleary Giacobbe Alfieri Jacobs, LLC argued for the Respondent.

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