P.E.R.C. No. 2004-41, NJ Transit

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of NEW JERSEY TRANSIT CORPORATION, Respondent, -and- Docket No. CO-H-2002-309 NEW JERSEY TRANSIT PBA LOCAL NO. 304, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Peter Harvey, Attorney General of New Jersey (Virginia Class-Matthews, Deputy Attorney General, of counsel) ¶

For the Charging Party, Loccke & Correia, P.A., attorneys (Merick H. Limsky, of counsel) ¶

DECISION ¶

On May 14, 2002, New Jersey Transit PBA Local No. 304 filed an unfair practice charge against New Jersey Transit Corporation. The charge alleges that the employer violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq ., specifically 5.4a(1), (2), (3), (5) and (7),1/ by: ¶

1. failing to permit Probationary Officer Hudson to have a union representative present during an investigatory interview where Hudson had been designated as a witness; ¶

2) re-designating Hudson as a subject or principal of the investigation in retaliation for the union representative, State PBA Delegate Noble, informing Hudson of his rights; ¶

3) implementing a “blanket rule” that employees designated as witnesses are not entitled to union representation during interviews; and ¶

4) Investigator Goldstein’s saying to Noble, “If I find out you are telling these guys what to say, I’ll slam-dunk you.” ¶

On December 26, 2002, a Complaint and Notice of Hearing issued. On January 17, 2003, the employer filed its Answer. On April 29, 2003, Senior Hearing Examiner Arnold H. Zudick conducted a hearing. The union presented one witness, PBA President Ed Lahey. Lahey had not spoken with Hudson about this incident; he had spoken with Noble. The employer cross-examined Lahey and the union rested. The Hearing Examiner denied the employer’s motion to dismiss at the end of the union’s case-in- chief. The employer then rested without calling any witnesses. The parties filed post-hearing briefs. ¶

On July 28, 2003, the Hearing Examiner issued his report and recommendations. H.E. No. 2004-5, 30 NJPER 11 (¶4 2003). The Hearing Examiner recommended dismissing the first and third allegations, and recommended finding violations based on the second and fourth. In finding these violations, the Hearing Examiner relied solely on inferences he drew from admissions in the Answer. He recognized that Lahey’s testimony was hearsay and could not be the basis for finding a violation. ¶

Exceptions were initially due on August 10, 2003. The employer was granted an extension of time until September 10. On September 11, the Chair notified the parties that the Commission would consider this matter further and that the Hearing Examiner’s Recommended Decision would not become a final decision pursuant to N.J.A.C. 19:14-8.1(b).2/ On September 12, the employer filed exceptions. On November 26, the employer’s motion to accept its exceptions and brief as timely filed was granted. The charging party has not filed an answering brief or cross- exceptions. ¶

We have reviewed the record. We make these findings of fact based on the admissions in the employer’s Answer and the testimony of the sole witness. ¶

Based on the admissions we find: ¶

A civilian complained that New Jersey Transit officers had used excessive force. Two officers were identified as subjects of an investigation and were notified to appear at interviews on April 1 and April 5, 2002. They were allowed union representation at these interviews. ¶

Probationary Officer Hudson was identified as a witness and was notified to appear at the office of Investigator Goldstein on May 2, 2002. Hudson requested but was not permitted union representation. 3/ Goldstein asked PBA Delegate Noble to leave. Goldstein told Noble that if he found out that Noble was coaching officers on what to say during an interview, he would “slam-dunk him.” 4/ Goldstein decided to change Hudson’s status from witness to subject upon his refusal to cooperate. Hudson was permitted a union representative at that juncture. ¶

Based on Lahey’s testimony, we find: ¶

Prior to the Hudson incident, Lahey had not been informed that officers designated as witnesses in investigatory interviews were ever given the opportunity for a Weingarten representative (T16). Officers had told Lahey that they were denied union representation because they were designated as a witness (T18). ¶

An employee has a right to request a union representative’s assistance during an investigatory interview that the employee reasonably believes may lead to discipline. This principle was established in the private sector by NLRB v. Weingarten, 420 U.S. 251 (1975), and is known as a Weingarten right. It applies in the New Jersey public sector as well. UMDNJ and CIR, 144 N.J. 511 (1996); State of New Jersey (Dept. of Treasury), P.E.R.C. No. 2001-51, 27 NJPER 167 (¶32056 2001). If an employee requests and is entitled to a Weingarten representative, the employer must allow representation, discontinue the interview, or offer the employee the choice of continuing the interview unrepresented or having no interview. Dover Municipal Utilities Auth., P.E.R.C. No. 84-132, 10 NJPER 333 (¶15157 1984). If an employee is to be interviewed as a witness, whether the employee has a right to representation will be based upon an application of traditional Weingarten principles to the specific facts of the case. State of New Jersey (Dept. of Public Safety), P.E.R.C. No. 2002-8, 27 NJPER 332, 335 (¶32119 2001). The charging party bears the burden of proving that an employee is entitled to a Weingarten representative. ¶

The first alleged violation is the denial of Hudson’s request for union representation. Based on a record that does not include testimony from the employee who requested representation or the representative who was present, we agree with the Hearing Examiner that the charging party did not prove that Hudson’s interview triggered a right to Weingarten representation. The record does not show a reasonable basis for believing that the interview could result in his being disciplined. Absent testimony about the circumstances of the interview, we simply cannot determine whether Hudson was entitled to a Weingarten representative. Accordingly, we dismiss this allegation. ¶

The second alleged violation is that Goldstein re-designated Hudson as a subject rather than a witness in retaliation for Noble’s informing Hudson of his rights. The charging party proved that Hudson’s request for representation was denied and that he subsequently refused to cooperate, but it did not prove that Hudson was entitled to representation at the interview. Absent proof on that last point, we cannot conclude that he had a right not to participate in an interview without a representative. Contrast Dover MUA . We also note that the Answer specifically denied that the re-designation was done to retaliate against Noble and there is no evidence to the contrary. We dismiss this allegation. ¶

The third alleged violation is that the employer had a blanket rule of denying representation to employees designated as witnesses. The Hearing Examiner recommended dismissing this allegation for lack of competent evidence to support it and the charging party has not excepted to that ruling. We dismiss the allegation. ¶

The final alleged violation is that Goldstein threatened to “slam-dunk” Noble if he found out that Noble was telling employees what to say during the interviews. The Answer admitted that, after Hudson was denied a Weingarten representative and Noble was asked to leave, Goldstein told Noble that “if he found out that Officer Noble was coaching officers on what to say during an interview, he would “slam dunk him.” As we have already discussed, that admission does not justify an inference that the remark was meant to interfere with Noble’s right to advise employees concerning the right to representation in investigatory interviews. Absent testimony about the circumstances of the remark, we cannot determine whether it tended to interfere with any employee rights. Accordingly, we reject the recommendation that we find a violation based on the fourth allegation. ¶

OrderORDER ¶

The Complaint is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners Buchanan, DiNardo, Katz, Ricci and Sandman voted in favor of this decision. None opposed. Commissioner Mastriani was not present. ¶

DATED: December 18, 2003 ¶

Trenton, New Jersey ¶

ISSUED: December 19, 2003 ¶

Note1/ These provisions prohibit public employers, their representatives or agents from: “(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act; (2) Dominating or interfering with the formation, existence or administration of any employee organization; (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; (7) Violating any of the rules and regulations established by the commission.” ¶

2/ N.J.A.C . 19:14-8.1 provides: ¶

If no exceptions are filed, the recommended decision shall become a final decision unless the Chairman or such other Commission designee notifies the parties within 45 days after receipt of the recommended decision that the Commission will consider the matter further. ¶

3/ We do not infer, as the Hearing Examiner did, that Hudson’s request for representation was refused merely because he was identified as a witness. The Answer specifically denies that the refusal was based solely on the fact that Hudson was identified as a witness. It states that there were other contributing reasons, including the fact that Hudson was not named by the complainant. ¶

4/ We also do not infer that by threatening to “slam-dunk” Noble, Goldstein meant that Noble was not permitted to advise employees of their right to representation in investigatory interviews. The Answer does not justify an inference (H.E. at 5) about what Goldstein meant by what he said and what he said does not touch upon advising employees about their right to representation. ¶