dissenting.
I agree with the principles of law stated by the majority. I disagree with the application of those principles to the facts of this case.
The respondent’s member, Anthony Longo, was a troublesome, disruptive employee of Bridgewater Township whose temper tantrums led him on occasion to threaten his fellow workers. The Mayor of Bridgewater transferred Longo to the Road Department, instead of firing him as he later wished he had. When the Mayor told Longo of this decision, Longo, after telling the Mayor that his old supervisor was a “jerk” and that the Mayor “better learn what you’re doing in this job,” said of his new supervisor, “I’m going to bust his head open. I’ll kill him. Don’t let him near me. I hate him. I’ll kill him.” Yet, because Longo was a union activist, the effect of the Court’s decision is that he cannot be disciplined for conduct that would be unforgivable in the case of another employee. “The result [is] to immunize union activists against legitimate discipline for genuine offenses and to deprive employers of the freedom to apply their own rules uniformly to all their employees.” NLRB v. Wright Line, 662 F.2d 899, 902 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982). This unfortunate result arises because the Court refuses to permit the matter to be remanded to the hearing examiner to hear the direct evidence bearing upon Longo’s job performance.
One of the problems with the case is that the hearing examiner and the Public Employment Relations Commission (PERC) had differing views of the legal posture of the case. In the view of the hearing examiner, the issue was whether the municipality exercised an “inherent managerial prerogative” in transferring Longo, relying upon Ridgefield Park Educ. Ass’n v. Ridgefield Park Bd. of Ed., 78 N.J. 144 (1978), a case prohibiting arbitration of such a dispute. He therefore apparently concluded that it was unnecessary to consider the municipality’s offer of proof that Longo was an unruly, disruptive employee who would have been transferred regardless of his union activity. At the hearing, the examiner refused to permit the Director of Recreation and Parks to testify about Longo’s performance, including evidence of the direct threats of physical harm to his superiors, absent the “original source of these complaints.” In the examiner’s view,
*251[y]ou know really I don’t have any concern at this point over what the performance of Mr. Longo was. I mean, the question was — the question before me is whether or not when Mr. Longo was transferred in April and reduced in rate, whether or not that was in retaliation for the exercise by him with respect to accepting and protecting rights. I don’t have any question of his performance before me. This isn’t an issue.
On review of the hearing examiner’s report, PERC correctly concluded that agency review of an exercise of managerial discretion is permitted to determine whether the employment decision has been illegally motivated. See Teaneck Bd. of Educ. v. Teaneck Teachers Ass’n, 94 N.J. 9 (1983).
In my view, the agency should then have remanded the matter to the examiner to hear and evaluate the proofs, particularly the credibility of the proffered witnesses. We have repeatedly stressed the agency’s right to insist that a hearing officer consider all evidence relevant to the agency’s decision. See In re Kallen, 92 N.J. 14 (1983) (license revocation case remanded to Administrative Law Judge to hear additional evidence on drunk driving offered by police). The correlative of this is a duty to consider the relevant evidence that parties offer.
It may be easier to decide cases without hearing all the evidence but it is not fair. In Murphy v. Division of Pensions, 117 N.J.Super. 206, 218 (App.Div.1971), Judge Conford emphasized that “the rejection of [physicians’] reports by the Commission in its decision, without giving the claimant an opportunity to offer the oral testimony of the physician, is obviously unfair under the circumstances.” This is especially so here when, after the hearing examiner has restricted a line of questioning, the agency relies upon the lack of evidence of poor performance in concluding that the transfer was motivated by an anti-union bias. That the Township had not maintained a file of complaints should, not make a difference. We should not be the ones to encourage government by dossier.
Our cases have emphasized the important role that the hearing officer has in the agency decision. In Goodman v. London Metals Exchange, Inc., 86 N.J. 19, 34 (1981), in reviewing a finding of gender bias, the Court emphasized that “[deferring to the examiner’s opportunity to observe the witnesses’ demeanor, weigh the employer’s proffered explanation and fix its sufficiency and credibility, we find that the record is replete with evidence supporting the factual determinations made by the hearing examiner.”
*252To the same effect is NLRB v. Wright Line, 662 F.2d at 909:
Further support for the Board’s conclusion as to Wright Line’s motivation comes from the [administrative law judge’s (ALJ) ] credibility judgments. To rebut the inference of improper motive, Wright Line presented the testimony of three of the officials involved in the discharge. Each related his own view of the incident, denying any concern for [the union member’s] "untrustworthiness,” as shown by his false time report. The ALJ stated that, from the demeanor of the witnesses as well as from “the record as a whole ... I do not believe that they were truthful in revealing the ‘real reason’ for [the union member’s] discharge.” ... The ALJ’s credibility judgments must stand unless they are unreasonable, which these are not.
I regret dragging this personnel matter on any longer but think that the municipality should have a fair chance to show that this employee received no more and no less than any other employee would have. The hearing examiner should hear the Township out and fix the sufficiency and credibility of its explanation.
I would reverse and remand the cause to consider the issue of poor performance.
Justice CLIFFORD joins in this opinion.
For affirmance — Chief Justice WILENTZ and Justices SCHREIBER, HANDLER, POLLOCK and GARIBALDI — 5.
For reversal and remandment — Justices CLIFFORD and O’HERN — 2.