P.E.R.C. No. 2010-11, Newark

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of FRATERNAL ORDER OF POLICE, NEWARK LODGE NO. 12, Charging Party, -and- Docket No. CO-2008-339 CITY OF NEWARK, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants, in part, the Fraternal Order of Police, Newark Lodge No. 12's cross-motion for summary judgment and denies the City of Newark’s motion for summary judgment in an unfair practice case filed by the FOP alleging that the City violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., when it failed to provide either complete or timely responses to ten information requests made with regard to the processing of grievances. The Commission denies the parties’ cross-motions on eight of the requests. The Commission grants the FOP’s cross-motion on two of the information requests finding that three and four month delays in supplying information is not reasonably prompt. ¶

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 FRATERNAL ORDER OF POLICE, NEWARK LODGE NO. 12, Charging Party, -and- Docket No. CO-2008-339 CITY OF NEWARK, Respondent. ¶

AppearancesAppearances: ¶

For the Charging Party, Markowitz and Richman (Stephen Richman, of counsel and on the brief) ¶

For the Respondent, Schwartz Simon Edelstein Celso & Zitomer, LLC (Stefani Schwartz, of counsel and on the brief; Joshua I. Savitz and Nicolas D. Bliablias, on the brief) ¶

DECISION ¶

This case comes to us by way of cross-motions for summary judgment. In the underlying unfair practice charge, the Fraternal Order of Police, Newark Lodge No. 12 alleges that the City of Newark violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A et seq., when it failed to provide either complete or timely responses to ten information requests made with regard to the processing of grievances. The City’s motion is denied and the FOP’s cross-motion is granted as to two requests. All other aspects of the motions are denied. ¶

The FOP filed its charge on April 30, 2008. On October 8, Complaint and Notice of Hearing issued on alleged violations of 5.4a(1)and (5).1/ ¶

On December 31, 2008, the City filed a motion for summary judgment, with a supporting certification from Sergeant Catherine Gasavage. The City also filed a request for a stay of the scheduled hearing, which was granted on January 2, 2009.2/ Also on January 20, the FOP filed a response to the City’s summary judgment motion, and a cross-motion for summary judgment with a supporting certification from FOP President Derrick Hatcher. Each party made additional submissions in support of its motion. ¶

The City and the FOP entered into a Memorandum of Agreement ( “MOA” ) on December 20, 2007.3/ Section 1(b) of the MOA states as follows: ¶

The FOP will provide reasonable deadlines for satisfying its requests for information, usually with a minimum of ten days lead time. The FOP recognizes extraordinary circumstances may result in a longer satisfaction period, subject to notice in writing by the City prior to the expiration of the requested deadline indicating when the information will be provided. ¶

Summary judgment will be granted if there are no material facts in dispute and the movant is entitled to relief as a matter of law. N.J.A.C. 19:14-4.8(d); Brill v. Guardian Life Ins. Co. Of America, 142 N.J. 520, 540 (1995); Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 73-75 (1954). For organizational purposes, the ten information requests have been grouped by similarity and will be analyzed individually, or together where appropriate, to determine the merits of the parties’ cross- motions. ¶

Relying on federal precedent, we have held that an employer must supply information if there is a “probability that the desired information [is] relevant and that it [will] be of use to the union in carrying out its statutory duties and responsibilities.” Shrewsbury Bd. of Ed., P.E.R.C. No. 81-119, 7 NJPER 235, 236 (¶12105 1981). Relevance in this context is determined under a discovery-type standard, not a trial-type standard. State of New Jersey, P.E.R.C. No. 88-27, 13 NJPER 752 (¶18284 1987), recon. den. P.E.R.C. No. 88-45, 13 NJPER 841 (¶18323 1987), relying on NLRB v. Acme Industrial Co., 385 U.S. 432, 437 (1067). Thus “a broad range of potentially useful information should be allowed the union for the purpose of effectuating the bargaining process.” Shrewsbury Bd. of Ed., quoting Proctor & Gamble Manufacturing Co. v. NLRB, 603 F.2d 1310, 1315 (8th Cir. 1979). All the circumstances of a case are considered in deciding the extent of an employer’s duty to supply information, including an employee’s privacy interest, the union’s need for the information, and the employer’s business reasons for not supplying the requested information. Morris Cty. v. Morris Council No. 6, 371 N.J. Super. 246 (App. Div 2004). ¶

Employers have a duty to respond to relevant requests for information in a timely manner or to adequately explain why the information will not be furnished. Regency Service Carts, Inc and Shopmen’s Local Union No. 455, 345 NLRB 671, 673 (2005).4/ An unfair practice may occur if an employer does not provide the requested information “reasonably” promptly. NLRB v. John S. Swift Co., 277 F.2d 641, 645 (7th Cir. 1960). While a per se rule cannot be defined, a good faith effort on the part of the employer is expected in responding to an information request as promptly as circumstances allow, considering the extent of the information sought, the availability of the information, and any difficulty in retrieving it. West Penn Power Co., 339 NLRB 585, 587 (2003), enf’d in pert. part 394 F.3d 233 (4th Cir. 2005). ¶

Information requests to which the FOP asserts that the City failed to provide a complete response based on the City’s assertion that the information it refused to provide was irrelevant and unnecessary, as well as confidential under HIPAA, the ADA, and general labor jurisprudence (Grievance Nos. 08-05, 08-06, 06-41, and 08-15) ¶

There are four information requests to which the FOP asserts that the City failed to provide a complete response based on the City’s position that the information it refused to provide was irrelevant and unnecessary, as well as confidential under the Health Insurance Portability and Privacy Act ( “HIPAA” ) Privacy Rule.5/ Relative to Grievance Nos. 08-05, 08-06, 06-41, and 08- 15, all involving officers who allegedly received improper sick time counseling, on February 8, 2008, the FOP requested “the sick and injured leave records” of all police officers and superior officers assigned to the Fifth Precinct.” 6/ Additionally, the FOP requested “all sick time counseling forms” issued to members of the Fifth Precinct in the past twelve months. The City responded with the sick and injured leave records of the officers who were the subject of the specific grievances, but did not provide the comparative information requested. ¶

The FOP asserts that the requested information is necessary to determine if the officers were treated in a discriminatory or unfair manner. Gasavage’s certification states that the employee medical information sought by the FOP would include “records stating the officers’ names and other personal information” and “records [that] have been created by the City and/or health care providers who provide the health information to the City, and relates to the past and present physical and mental health or condition of these officers, as well as the provision of health care to these officers.” The City asserts that the comparative information is irrelevant and unnecessary, as well as confidential under HIPAA, the Americans with Disabilities Act ( “ADA” ), 42 U.S.C. 12101 et seq., and general labor jurisprudence. ¶

The FOP is seeking comparative information that, according to Gasavage’s unrefuted certification, would list officers’ past and present medical conditions and describe the medical care they received. The City also asserts, without contradiction, that the FOP has indicated that redacted copies of medical records would be of no value to the FOP. Without more information about why individually identifiable health information is potentially relevant, we are unable to balance the FOP’s need for the information against any interests the City and employees may have in maintaining the confidentiality of sensitive health information. See Detriot Edison Co. v. N.L.R.B., 440 U.S. 301, 314-320 (1979); Johns-Manville Sales Corp., 252 NLRB 368 (1980). There may also be privacy concerns triggered by the HIPAA Privacy Rule or the ADA. We note that in City of Trenton, P.E.R.C. No. 2005-20, 30 NJPER 413 (¶135 2004), we found that the employer was not a “covered entity” subject to HIPAA. However, the City claims that it is a covered entity, citing Michelson v. Laddie Wyatt and the City of Plainfield, 379 N.J. Super. 611, 623 (App. Div. 2005), a case that suggests that an employer may be a covered entity when it receives protected health information from another covered entity. The record does not contain information about how the information in the sick and injured leave records is gathered or whether that information is contained in personnel or employment files, or in separate medical files. Information about how these records are created and kept may be important in determining, among other things, whether the requested comparative information could be considered protected health information7/ under the HIPAA Privacy Rule, or subject to the exclusion for “employment records held by a covered entity in its role as employer.” 45 C.F.R. 160.103. ¶

The City’s motion and the FOP’s cross-motion for summary judgment are denied for these four information requests. ¶

Information requests involving the FOP’s assertion that the City provided an untimely response (Grievance Nos. 06-34 and 04-80) ¶

There are two information requests that the FOP contends the City responded to in an untimely manner. With regard to Grievance No 06-34, submitted on January 31, 2008, the FOP requested an investigative file of a police officer.8/ The City responded approximately four months later on May 23. A delay of four months is not a “reasonably prompt” response. See NLRB v. John S. Swift Co.; Peyton Packaging Co. v. Amalgamated Meat Cutters and Butcher Workmen of North America, 129 NLRB 1358, 1362 (1961) (three month delay was too long in responding to union’s information request). The City asserts that it could not immediately locate the file. However, the City’s explanation is inadequate since it provides no further justification for the delay, such as why it could not immediately locate the file, where the file was located, or the attempts it made to locate the file in a more timely manner. See Regency Service Carts. ¶

Relative to Grievance No. 04-80, on February 13, 2008, the FOP requested a copy of the personnel cards for 23 department members. The City responded on April 1, however the FOP asserts, and the City does not dispute, that the City did not provide current personnel cards, but rather personnel cards ranging only from 1995 to 2006. The union sent a follow-up request on April 14, and the City provided current personnel card information on May 29. The FOP asserts that the City’s response was untimely. With regard to this request, it took the City over three months to respond with the requested information to the union. Such a delayed response cannot be considered “reasonably prompt” when the City should have understood what was required of it initially. See Regency Service Carts; Peyton Packaging Co. The City has not offered an explanation why the requested information was not supplied sooner. For both of these information requests, the union’s motion for summary judgment is granted and the City’s cross-motion is denied. ¶

Information requests to which the FOP asserts that incomplete responses were provided by the City (Grievance Nos. 08-12 and 08- 26) ¶

There are two information requests to which the FOP asserts the City provided incomplete responses. Relative to Grievance No 08-12, on February 20, 2008, the FOP requested any and all sick records used by the City to issue sick time counseling to an officer. The City asserts that on March 31, it complied with the information request in full, however the FOP asserts that the response was incomplete. Relative to Grievance No. 08-26, regarding an improper change in medical benefits for retirees covered by Medicare, on April 2, the FOP requested the executed contract between the City and Aetna regarding the Aetna Medicare Open Plan and the Summary Plan Description for the Aetna Medicare Open Plan. The City responded on May 6 and asserts that all the requested information was provided. The FOP asserts that the City’s response was “incomplete and non-responsive.” The issues involving these information requests are not appropriate for summary judgment since the parties disagree about whether the City provided a complete response. The City’s motion and the FOP’s cross-motion for summary judgment are denied for these two information requests. ¶

Information request regarding personnel cards and the City’s assertion that a captain’s personnel cards were irrelevant and unnecessary (Grievance No. 07-38) ¶

Relative to Grievance No. 07-38 regarding the discipline of an officer, on February 25, 2008, the FOP requested a copy of “personnel cards” for the officer, as well as for a captain, a non-unit member. On May 29, the City responded. Gasavage’s certification states that the City provided the transfer records for the officer, as well as the investigation records relative to the subject of the grievance. The FOP asserts that the City’s response was incomplete since it did not include the “personnel cards” for the captain. The FOP asserts that the information regarding the captain is relevant because the officer was disciplined only when supervised by that captain. The City responds that the captain’s “personnel cards” are irrelevant and that the FOP has not articulated a precise basis for their relevance. Based on this record, we are unable to ascertain what specific information is contained within “personnel cards” and how such information about the captain would be relevant to the grievance. The City’s motion and the FOP’s cross-motion for summary judgment are denied as to Grievance No. 07-38. ¶

Information request regarding medical evaluations and fitness for duty determinations (grievance number not identified) ¶

Hatcher’s certification simply states that on February 15, 2008, “in contemplation of a grievance, the FOP requested information concerning the criteria for medical evaluations for bargaining unit employees.” 9/ The record contains a copy of the City’s April 16 response, in which it advised the FOP that the factors used to determine which officers will be required to undergo evaluations are the review and analysis of an officers’ records by the captain of the Medical Services Unit and recommendations from the police director, police chief, trial board or various superior officers. The City also advised that the captain determines which officers will be required to undergo evaluations, and that the Police Director or his designee determines which individuals will be administratively charged as unfit for duty and which officers will be offered light duty assignments. The City’s response sets forth that the City would not provide the names of officers who have been sent by the City for medical evaluations based on its belief that the information was confidential under HIPAA. Hatcher’s certification states only that the union sought information regarding the criteria for medical evaluations, which it appears the City did provide. On this record, we are unable to ascertain which information the FOP still seeks. Therefore, the City’s motion and the FOP’s cross- motion for summary judgment are denied. ¶

Finally, we observe that these parties have a long history of litigation over the duty to supply information. We are aware of at least three prior unfair practice charges involving disputes over the duty to supply information. These parties must work together to develop an on-going mechanism to resolve these disputes in lieu of continued litigation. Cf. Hunterdon Cty. Freeholder Bd. and CWA, 116 N.J. 322, 338-39 (1989). ¶

OrderORDER ¶

The City’s motion and the FOP’s cross-motion for summary judgment are denied with respect to Grievance Nos. 08-05, 08-06, 06-41, 08-15, 08-12, 08-26, and 07-38 as well as for the information request relating to medical evaluations and fitness for duty evaluations for which a grievance number was not identified. The City’s motion for summary judgment is denied and the FOP’s cross-motion for summary judgment is granted with regard to Grievance Nos. 04-80 and 06-34. ¶

BY ORDER OF THE COMMISSION ¶

Chairman Henderson, Commissioners Colligan, Fuller, Joanis and Watkins voted in favor of this decision. None opposed. Commissioners Branigan and Buchanan were not present. ¶

ISSUED: August 13, 2009 ¶

Trenton, New Jersey ¶

1 / These provisions prohibit public employers, their representatives or agents from “(1) Interfering with, restraining or coercing employees in the exercise of rights guaranteed to them by this Act . . . and (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.” ¶

Note2/ The FOP did not object to the request for a stay of the hearing. ¶

3/ Reference to the MOA is included for informational purposes only. To the extent the FOP is asserting a breach of the MOA, its claim must be pursued through the negotiated grievance procedure. State of New Jersey (Dept. of Human Services, P.E.R.C. No. 84-148, 10 NJPER 419 (¶15191 1984). This decision considers only whether the City violated its obligations under the Act. ¶

4/ It is appropriate to refer to the experience under the federal Labor-Management Relations Act, 29 U.S.C. 141 et seq., for guidance. Galloway Tp. Bd. of Ed. v. Galloway Tp. Ass’n of Educational Secretaries, 78 N.J. 1, 9 (1978). ¶

5/ HIPAA, 42 U.S.C.S. ¶1320 et seq., is a federal law. One of its primary purposes is to provide for the privacy of health information. To accomplish that purpose, Congress mandated the Secretary of Health and Human Services to develop standards to ensure the privacy of health information. The Secretary promulgated regulations, collectively known as the Privacy Rule, which set forth standards and procedures for the collection, maintenance and disclosure of certain health care information by “covered entities” . 42 U.S.C.A. ¶1320d- 1; 45 C.F.R. ¶160.102, ¶160.103. The Privacy Rule prohibits covered entities from using or disclosing protected health information except as permitted by regulation. 45 C.F.R. ¶164.502(a). ¶

6/ The information request for Grievance 08-15 was submitted on February 22, 2007 and related to police officers and superior officers in the COMPSTAT Unit, not the entire Fifth Precinct. ¶

7/ Protected health information means individually identifiable health information. Individually identifiable health information is information that is a subset of health information, including demographic information collected from an individual; and ¶

Order(1) is created or received by a health care provider, health plan, employer or health care clearinghouse; and ¶

(2) relates to the past, present or future physical or mental health or condition of an individual; or the past, present or future payment for the provision of health care to an individual; and ¶

(i) that identifies the individual; or ¶

(ii) with respect to which there is a reasonable basis to believe the information can be used to identify the individual. 45 C.F.R. 160.103. ¶

8 / We do not have a copy of the FOP’s January 31, 2008 letter, and therefore cannot ascertain the time period within which the FOP requested a response. ¶

9 / Neither party provided a copy of the FOP’s February 15, 2008 letter. ¶