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 Employer-Employee 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, 471 A.2d 1 (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. 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, 471 A.2d 1. 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 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 that the Board deal exclusively with Local 3170 as to filling the full-time paid vacancy. Chairman DiPierro responded:

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."

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 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 5.4(a)(1), (3), and (5) of the Act, which provide in pertinent part:

Local 3170 specifically alleged that the Board violated the Act "by unilaterally assigning bargaining unit work to non-bargaining 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 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 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, 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:

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 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 seventy-nine 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, 713 A.2d 472 (1998), the hearing examiner concluded this activity was "mandatorily negotiable" and could not be performed without 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(a)(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:

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."

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:

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(a)(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 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 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, 713 A.2d 472. PERC's determination must be upheld unless the party appealing it shows that it is clearly arbitrary and capricious. Id. at 568, 713 A.2d 472. 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, 471 A.2d 1. 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 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, 471 A.2d 1 (citing N.J.S.A. 34:13A-5.4(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, 471 A.2d 1. 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, 471 A.2d 1 (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 dual motive retaliation cases. The Court explained that when dual motives are alleged,

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, 471 A.2d 1 (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 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 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, 552 A.2d 1003 (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-time paid firefighters was pretextual. The hearing examiner stated in pertinent part that

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 [25] the timing of the discharges closely with economic decline." Id. at 102, 552 A.2d 1003. 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, 118 A.3d 1041 (2015) is misplaced. In Borough of Keyport, the municipalities provided detailed financial information evincing a financial crisis. Id. at 320-26, 118 A.3d 1041. 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, 118 A.3d 1041. 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, 118 A.3d 1041. 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, 118 A.3d 1041.

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 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),

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.

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.

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, 393 A.2d 207 (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, 393 A.2d 207; see also Maywood Bd. of Ed. v. Maywood Ed. Ass'n, 168 N.J.Super. 45, 63, 401 A.2d 711 (App.Div.), certif. denied, 81 N.J. 292, 405 A.2d 836 (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, 561 A.2d 597 (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.