P.E.R.C. No. 2010-3, N Hudson Reg Fire & Rescue

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of NORTH HUDSON REGIONAL FIRE & RESCUE, Petitioner, -and- Docket No. SN-2009-024 NORTH HUDSON FIREFIGHTERS ASSOCIATION, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants the request of the North Hudson Regional Fire and Rescue for a restraint of binding arbitration of a grievance filed by the North Hudson Firefighters Association. The grievance challenges the unilateral implementation of a work rule prohibiting employees from using any recording devices while on duty. The Commission finds that, on balance, the Regional has identified specific concerns as opposed to the speculative concerns of the Association that establish that negotiations over the policy would substantially limit its policy making power. ¶

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 NORTH HUDSON REGIONAL FIRE & RESCUE, Petitioner, -and- Docket No. SN-2009-024 NORTH HUDSON FIREFIGHTERS ASSOCIATION, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Scarinci Hollenbeck, attorneys (Adam S. Abramson, on the brief) ¶

For the Respondent, Cohen, Leder, Montalbano & Grossman, attorneys (David Grossman, on the brief) ¶

DECISION ¶

On November 5, 2008, North Hudson Regional Fire & Rescue petitioned for a scope of negotiations determination. The employer seeks a restraint of binding arbitration of a grievance filed by the North Hudson Firefighters Association. The grievance challenges the unilateral implementation of a work rule prohibiting employees from using any recording devices while on duty. We restrain binding arbitration. ¶

The parties have filed briefs and exhibits. At our request, both parties filed certifications addressing the specific employee and employer interests implicated in this case. ¶

The Association represents the firefighters employed by the Regional. The parties’ collective negotiations agreement is effective from July 1, 2004 through June 30, 2009. The grievance procedure ends in binding arbitration. ¶

On April 22, 2008, the chief issued a General Order prohibiting surreptitious recording or monitoring of employees by another employee. The Order states: ¶

1. It is the policy of North Hudson Regional Fire and Rescue to facilitate open communications among its employees by prohibiting surreptitious recording or monitoring of employees by another employee. ¶

2. The Department has determined that such recording or monitoring involves an element of artifice, deception, trickery or deceit which falls below the standard of candor and frankness expected of public employees. ¶

3. Such recording is disruptive to the workplace and impairs productivity of the members. ¶

4. In order to facilitate open communication among employees all Department employees are prohibited from engaging, directing or promoting any form of surreptitious recording or monitoring using a recording, electronic or digital device while acting within or related to the scope of their employment as a member/representative of North Hudson Regional Fire and Rescue. ¶

5. Only the following exceptions of recording shall not constitute surreptitious recording or monitoring for purposes of this General Order. ¶

a. Public meetings may be recorded in accordance with the Open Public Meetings Act. ¶

b. Any necessary recordings to conduct Department business or tasks that inherently require recording/monitoring information. ¶

c. Written consent from an individual party prior to recording or monitoring said individual party. ¶

6. Requests for recording or monitoring other than in the above three exceptions may also be made for advance written authorization by the Executive Directors to surreptitiously record another individual, but will only be granted if extenuating circumstances for recording are present. ¶

7. Advance written authorization must be received by the requesting employee before recording or monitoring is permitted. ¶

8. Violation of this General Order will result in immediate discipline of the employee, the penalties of which include suspension without pay for a first offense, and for continuing offenses additional penalties such as demotion and/or termination will be imposed. ¶

9. The regulation and General Order shall take effect immediately, and shall be applicable to all Department employees. ¶

On July 1, 2008, the Association filed an unfair practice charge challenging the issuance of the General Order (CO-2009- 001). On September 8, an Assistant to the Director of Unfair Practices memorialized an agreement under which the Association would withdraw its charge, file a grievance, and seek binding arbitration and the employer would file this scope of negotiations petition. ¶

The Regional’s Executive Director certifies that the use of recording devices is destructive to the morale of the department and leads to a hostile work environment where firefighters are fearful of open communications amongst themselves. He states that the use of recording devices would hinder the Regional’s ability to evaluate firefighters’ responses to fires and adversely affect public safety, as the firefighters would fear retribution for secretly recorded communications. He recites a case where over 20 firefighters and fire officers were surreptitiously recorded by a member of the department and the recordings were then used in an administrative action and civil lawsuit filed against the Regional. He states that department members were afraid to speak openly or voice constructive criticism regarding evaluations of fires, procedure adherence, and emergency response performance. The Director states that the exceptions in the policy provide members with the opportunity to use recording devices and that if a member finds a need for a use outside the exceptions, the member may request advanced written authorization from the Director. ¶

The Association’s President certifies that no employee has complained to him that tape recordings create a hostile work environment or affected his or her productivity. He states that in seeking to negotiate over the Order, the Association wants to determine whether the three exceptions are sufficient or whether the prohibition against recordings should be abolished. The President states that an employee does not fear being recorded unless the employee’s speech goes beyond legally acceptable conversation. He asserts that the use of recording devices may avoid a hostile work environment by causing speakers to rethink what otherwise might be unlawful speech. ¶

Our jurisdiction is narrow. Ridgefield Park Ed. Ass’n v. Ridgefield Park Bd. of Ed., 78 N.J. 144 (1978), states: ¶

The Commission is addressing the abstract issue: is the subject matter in dispute within the scope of collective negotiations. Whether that subject is within the arbitration clause of the agreement, whether the facts are as alleged by the grievant, whether the contract provides a defense for the employer’s alleged action, or even whether there is a valid arbitration clause in the agreement or any other question which might be raised is not to be determined by the Commission in a scope proceeding. Those are questions appropriate for determination by an arbitrator and/or the courts. ¶

[Id. at 154] ¶

Thus, we do not consider the merits of the grievance or any contractual defenses the employer may have. ¶

Paterson Police PBA No. 1 v. City of Paterson, 87 N.J. 78 (1981), outlines the steps of a scope of negotiations analysis for police officers and firefighters: ¶

First, it must be determined whether the particular item in dispute is controlled by a specific statute or regulation. If it is, the parties may not include any inconsistent term in their agreement. [State v. State Supervisory Employees Ass'n, 78 N.J. 54, 81 (1978).] If an item is not mandated by statute or regulation but is within the general discretionary powers of a public employer, the next step is to determine whether it is a term and condition of employment as we have defined that phrase. An item that intimately and directly affects the work and welfare of police and fire fighters, like any other public employees, and on which negotiated agreement would not significantly interfere with the exercise of inherent or express management prerogatives is mandatorily negotiable. In a case involving police and fire fighters, if an item is not mandatorily negotiable, one last determination must be made. If it places substantial limitations on government's policymaking powers, the item must always remain within managerial prerogatives and cannot be bargained away. However, if these governmental powers remain essentially unfettered by agreement on that item, then it is permissively negotiable. [Id. at 92-93; citations omitted] ¶

Arbitration will be permitted if the subject of the dispute is mandatorily or permissively negotiable. See Middletown Tp., P.E.R.C. No. 82-90, 8 NJPER 227 (¶13095 1982), aff'd NJPER Supp.2d 130 (¶111 App. Div. 1983). Paterson bars arbitration only if the agreement alleged is preempted or would substantially limit government’s policymaking powers. No preemption issue is presented. The parties acknowledge that no statute or regulation prohibits the disputed recording or prohibits the employer from banning the disputed recording. The parties also acknowledge that we have never addressed the negotiability of a prohibition on employee use of recording devices. Accordingly, we proceed to apply the remaining parts of the negotiability tests. ¶

The Association asserts that the General Order places a severe and unreasonable restriction on the employees’ personal and legal right to tape-record telephone and face-to-face conversations. We recognize that employees have an interest in being able to record hostile or illegal statements by supervisors and co-employees and that such recordings have provided evidentiary support for discrimination claims. See, e.g., Heller v. Champion Int’ l Corp., 891 F.2d 432 (2d Cir. 1989) (rejecting proposition that employee would never be justified in tape-recording conversations with superiors to prove age discrimination); but see Bodoy v. North Arundel Hosp., 945 F. Supp. 890 (D. Md. 1996) (upholding discharge for surreptitious recording that was illegal under Maryland law). ¶

The employer asserts that surreptitious recording creates a hostile work environment where employees are fearful of open communication. It further asserts that it has a legitimate business justification to ensure a hostile-free environment. We agree with the employer that surreptitious recording could chill communication between employees and that supervisors and co- employees may fear that statements they make could be used against them at some future date. ¶

On balance, we believe that on this record, the employer’s interest in establishing a policy banning surreptitious recording outweighs the employees’ interest in recording hostile or illegal statements by supervisors and co-employees. Cf. Oches v. Middletown Tp., 155 N.J. 1 (1998) (Court stated that surreptitious recording of promotional interview breeds distrust among the closely-knit members of a police department and employer could ban such recording; case did not involve negotiability of such a ban and Court did not address negotiability). The Regional has identified specific concerns and points to a particular case where surreptitious recording adversely affected department operations. The Association has identified only speculative interests. A lack of employee complaints to the Association about recording is not dispositive. We note also that because this case involves firefighters, the scope of negotiations is broader and arbitration can be restrained only if there is a substantial limitation on government’s policymaking powers. This case presents such a limitation because of the identified adverse impact on department operations. ¶

Having found that the Regional had a non-negotiable prerogative to ban recording devices, we encourage the parties to explore the scope of the exceptions to see if any Association concerns can be addressed. ¶

OrderORDER ¶

The request of the North Hudson Regional Fire & Rescue for a restraint of binding arbitration is granted. ¶

BY ORDER OF THE COMMISSION ¶

Chairman Henderson, Commissioners Joanis and Watkins voted in favor of this decision. Commissioner Colligan voted against this decision. Commissioner Fuller abstained. Commissioners Branigan and Buchanan were not present. ¶

ISSUED: August 13, 2009 ¶

Trenton, New Jersey ¶