P.E.R.C. No. 2005-49, Newark State Operated Sch Dist

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of NEWARK STATE-OPERATED SCHOOL DISTRICT, Respondent, -and- Docket No. CO-2003-234 SEIU LOCAL 617, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission dismisses a Complaint against the Newark State-Operated School District. The Complaint was based on an unfair practice charge filed by SEIU Local 617 alleging that the District violated the New Jersey Employer-Employee Relations Act when it denied a Local 617 business agent access to its central office to represent unit members in disciplinary and grievance hearings. The Commission concludes that the District had a substantial and legitimate security concern to deny access to the central office and that the District made reasonable accommodations to ensure that employees are properly represented in grievance and discipline hearings. ¶

This synopsis is not part of the Commission decision. It has been prepared for the convenience of the reader. It has been neither reviewed nor approved by the Commission. ¶

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of NEWARK STATE-OPERATED SCHOOL DISTRICT, Respondent, -and- Docket No. CO-2003-234 SEIU LOCAL 617, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Newark Public Schools Office of the General Counsel, attorneys (Adam S. Herman, of counsel) ¶

For the Charging Party, Oxfeld Cohen, attorneys ¶

(Arnold Shep Cohen, of counsel) ¶

DECISION ¶

On August 3, 2004, SEIU Local 671 filed exceptions to a Hearing Examiner’s report and recommendations. The Hearing Examiner found that the Newark State-Operated School District did not engage in unfair practices under the New Jersey Employer- Employee Relations Act, N.J.S.A. 34:13A-1 et seq ., specifically 5.4a(1), (2), and (5),1/ when it denied an SEIU Local 617 business agent access to its central office to represent unit members in disciplinary and grievance hearings. The Hearing Examiner recommended that the Complaint be dismissed. ¶

The unfair practice charge was filed by SEIU Local 617 on March 12, 2003. On July 31, a Complaint and Notice of Hearing issued. On March 12, 2004, the District filed an Answer admitting that it denied Debbie Walker access to the District’s central office, but asserting that: Walker was denied access for security reasons related to her previous District employment; and asserting that the denial of access did not interfere with Local 617's ability to represent employees. ¶

On March 23, 2004, Hearing Examiner Wendy L. Young conducted a hearing. The parties examined witnesses, introduced exhibits, and filed post-hearing briefs. ¶

On June 23, 2004, the Hearing Examiner issued her report and recommendations. H.E. No. 2004-18, 30 NJPER 284 (¶99 2004). On August 3, SEIU filed exceptions. On August 13, the District filed an answering brief urging adoption of the Hearing Examiner’s recommendations. ¶

We have reviewed the record. We adopt and incorporate the Hearing Examiner’s findings of fact, including her credibility determinations (H.E. at 3-16). ¶

Debbie Walker is employed by Local 617 as a business agent. Local 617 represents employees in various blue collar and clerical titles employed in the District’s 82 schools and its central office. Local 617 also represents employees of the cities of Newark, Irvington, and Jersey City and the Newark Housing Authority. ¶

Walker is a former employee of the District. She worked for the District as a data control clerk/typist in the Payroll Department at its central officer. Walker resigned from the District on October 7, 2002 as part of a settlement agreement arising out of disciplinary charges brought against her. 2/ The District charged Walker with various offenses related to alleged theft of overtime pay through tampering with her own records. The charges were based on a District investigation that revealed unauthorized overtime payments totaling approximately $6,000 since 1999. ¶

Article 22 of the parties’ contract permits union representatives to have access to all buildings and facilities during working hours to adjust grievances, settle disputes, investigate working conditions, and effectuate the provisions and aims of the contract. The facility office must be notified that the representative is present. ¶

Most disciplinary and grievance hearings are held at the central office. Visitors to that office must sign in at the street level lobby. There are security guards on each floor. Upon arrival, Local 617 representatives acknowledge their presence to the guard and go about their union business unescorted. Hearings are held in one conference room, but Local 617 representatives often leave the hearing room to get documents or speak to witnesses. ¶

Central office computers contain confidential employee and student information. The computer system has changed since Walker left. Passwords are changed every few weeks, but computers with password-protected programs running are sometimes left unattended. In the 82 schools, computers are located behind the counters in the principals’ offices where union representatives need permission to go. ¶

Shortly after Walker’s resignation from the District, Local 617 hired her as a business agent. On January 21, 2003, Walker returned to the central office to represent unit members at disciplinary proceedings. Upon being made aware of Walker’s presence in the building, and after speaking to the District’s general counsel, the District’s Director of Labor Relations asked Walker to leave. He was concerned about the security of the computers because Local 617 representatives historically have had free access to employees and their workstations. He was concerned that Walker could sit down at a computer unchallenged, especially since employees were not aware of the facts surrounding her resignation. He did not consider telling employees the reason she had left because, among other reasons, he did not want “to kick her when she was down.” The Director was also concerned that Walker’s ill-will toward the District gave her reason to misuse computer information if given the opportunity to do so. He was also concerned that Walker’s presence would disrupt operations because her alleged misconduct had resulted in an investigation of all employees in the payroll department. ¶

Although Walker’s access to the central office was prohibited, she has been permitted to enter the 82 schools to service the membership. The District has no objection to Walker representing members at grievance or disciplinary hearings held outside of the central office and will hold hearings at other locations to accommodate Walker. Walker trained a chief shop steward to service employees at the central office. The District hired a per diem employee to provide coverage when the steward is in hearings. Another union business agent also handled representation of employees at the central office. ¶

Public employees have a constitutional right to present grievances through their chosen representative. N.J. Const. art. I, ¶19; see also Dover Tp ., P.E.R.C. No. 77-43, 3 NJPER 81 (1977). Public employers must negotiate written grievance and disciplinary review procedures by means of which their employees or representatives of employees may appeal the interpretation, application or violation of policies, agreements, and administrative decisions, including disciplinary determinations. N.J.S.A. 34:13A-5.3; see also Red Bank Reg. Ed. Ass’n v. Red Bank Reg. H.S. Bd. of Ed ., 78 N.J . 122 (1978) (public employees have right to have grievances presented by majority representative). An employer action that tends to interfere with these statutory rights without a legitimate and substantial business justification violates 5.4a(1). See, e.g., New Jersey Sports and Exposition Auth ., P.E.R.C. No. 80-73, 5 NJPER 550 (¶10285 1979); Missouri Portland Co ., 284 NLRB 432, 433 (1987) (employer violated a(1) by refusing to meet with union’s grievance representatives). ¶

The Hearing Examiner found that the District had substantial and legitimate business concerns that justified denying Walker access to the central office to attend grievance and discipline hearings. Local 617 argues in its exceptions that the Hearing Examiner applied the wrong standard. It relies on a private sector case, King Soopers, Inc ., 338 NLRB No. 30 (2002), which states that an employer can justifiably refuse to meet with a particular union representative if there is “persuasive evidence” that the presence of that individual would create ill-will and make good faith bargaining impossible.” Local 617 contends that since there was no final determination that Walker actually engaged in the alleged misconduct, there is no persuasive evidence to justify the restriction on her access. ¶

King Soopers is inapplicable. The District is not claiming that it will not meet with Walker or let her represent unit employees. It more narrowly maintains that because of its computer security concerns, it can reasonably refuse to meet with her in the central office. It is willing to allow her access to the District’s 82 schools and will move hearings outside of the central office to accommodate her and Local 617. ¶

More relevant private and public sector access cases permit an employer to enforce reasonable rules necessary to safeguard its property interests. See, e.g., Great Western Coca-Cola Bottling Co., 265 NLRB 766 (1982); Atlantic Cty., P.E.R.C. No. 98-8, 23 NJPER 466 (¶28217 1997). In Atlantic Cty ., we held that an employer may not impose a total ban on a union representative’s access to its premises without a substantial, legitimate business justification. In that case, union president was terminated from employment by the County, which implemented a total ban on his access to the County’s Justice Facility. The Hearing Examiner recommended finding that a ban extending beyond the portions of the jail that were off limits to non-employees was too broad and that the County should have to negotiate over reasonable access. We adopted that recommendation. ¶

Here, the District’s computer security concerns are substantial and legitimate and its ban is not total. Walker was charged with theft of overtime pay. She resigned pursuant to a settlement agreement under which she agreed that her accumulated vacation and personal leave would be used as restitution and that the employer would issue a Final Notice of Disciplinary Action. That Notice sustained the charges. No further adjudication on the charges was contemplated and none is needed to conclude that the District had a substantial and legitimate security concern. The District also made reasonable accommodations to ensure that employees are properly represented in grievance and discipline hearings, by other representatives at the central office or by Walker at an alternate location. 3/ The employer’s interest in denying access outweighs any tendency of this denial to interfere with employee rights. ¶

We also adopt the Hearing Examiner’s recommendation to dismiss the remaining allegations in the Complaint. ¶

OrderORDER ¶

The Complaint is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Lawrence Henderson ¶

Chairman ¶

Chairman Henderson, Commissioners Fuller, Mastriani and Watkins voted in favor of this decision. Commissioner Buchanan voted against this decision. Commissioners DiNardo and Katz were not present. ¶

DATED: January 27, 2005 ¶

Trenton, New Jersey ¶

ISSUED: January 27, 2005 ¶

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. (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.” ¶

2/ We specifically reject Local 617’s argument that the settlement agreement precluded the District from presenting evidence of its reasons for denying Walker access. The agreement requires the parties to keep its terms confidential, but does not address whether or not Walker can reenter the premises as a union representative or require the District to ignore its security concerns. ¶

3/ The Hearing Examiner in Atlantic Cty. noted that the parties’ contract did not guarantee the president access to the union office within the secure portion of the jail. Whether the access provision in this case guaranteed Walker access beyond that afforded by the District is an issue of contract interpretation not before us. ¶