P.E.R.C. No. 2011-4, Bridgeton

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of LUIS SANTIAGO, Appellant, OAL Docket No. CSV 2700-08 -and- Agency Docket No. 2008-3576 CITY OF BRIDGETON, Respondent. CITY OF BRIDGETON, Respondent, -and- Docket No. CO-2008-262 BRIDGETON PBA LOCAL 94, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission adopts an Administrative Law Judge’s initial decision recommending that an unfair practice charge filed by Bridgeton PBA Local 94 against the City of Bridgeton be dismissed. The charge alleges that the City violated the New Jersey Employer-Employee Relations Act, specifically N.J.S.A. 34:13A-5.4 (1) and (3), when it disciplined the PBA president in retaliation for protected activity. The Commission holds that under the facts of this case, the City had the right to order the PBA president to provide information about allegations he set forth in a grievance regarding the department’s internal affairs bureau and the City did not violate the Act when it disciplined him for refusing to cooperate. PERC transfers the case to the Civil Service Commission for consideration of the employee’s consolidated Civil Service appeal. ¶

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 PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of LUIS SANTIAGO, Appellant, OAL Docket No. CSV 2700-08 -and- Agency Docket No. 2008-3576 CITY OF BRIDGETON, Respondent. CITY OF BRIDGETON, Respondent, -and- Docket No. CO-2008-262 BRIDGETON PBA LOCAL 94, Charging Party. ¶

AppearancesAppearances: ¶

For the Appellant/Charging Party, Loccke, Correia, Schlager, Limsky & Bukosky, attorneys (Merick H. Limsky, of counsel) ¶

For the Respondent, Gruccio, Pepper, DeSanto & Ruth, P.A., attorneys (Stephen D. Barse, of counsel) ¶

DECISION ¶

This case comes to us by way of exceptions to the Initial Decision of an Administrative Law Judge in a consolidated unfair practice case before this Commission and an appeal of a major disciplinary determination before the Civil Service Commission. Luis Santiago filed an appeal with the Civil Service Commission from the determination of the City of Bridgeton to fine him in the amount of $6,468 (an amount equal to 30 days’ pay). Bridgeton PBA Local 94 filed an unfair practice charge with this Commission alleging that the Police Chief violated Santiago’s right to union representation during an investigatory interview, intimidated and coerced negotiations unit members by not treating Santiago as an equal in the grievance procedure, and by disciplining Santiago in retaliation for his union activity. ¶

On September 17, 2008, the Director of Unfair Practices issued a Complaint on the allegations that the City violated 5.4a(1) and (3) of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. Those provisions prohibit a public employer from: “(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act . . . [and] (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.” The Director declined to issue a Complaint on alleged violations of 5.4a(2), (4), (5), (6) or (7).1/ ¶

The Civil Service Commission and the Chairman of this Commission issued a Joint Order consolidating the cases before the ALJ. P.E.R.C. No. 2009-46, 35 NJPER 65 (¶24 2009). The Joint Order further provided that upon transmittal of the Initial Decision to both agencies, the underlying record would be forwarded to this Commission to consider and decide all questions within our unfair practice jurisdiction; and then our decision and the complete record would be sent to the Civil Service Commission to determine whether the disciplinary action was warranted under Civil Service laws. ¶

The ALJ issued an Initial Decision dismissing the unfair practice allegations, affirming the charge of insubordination, and dismissing the remaining charges of neglect of duty and violation of department rules and regulations. ¶

We have reviewed the record. We adopt and incorporate the ALJ’s Undisputed Facts (Initial Decision at 3-5). The ALJ found that PBA President Luis Santiago initiated a grievance and presented it to Police Chief Mark Ott. The grievance alleged that there was questionable conduct within the internal affairs bureau. Ott then ordered Santiago to provide a special report that included the names of the police officers who approached him with allegations about the alleged questionable conduct. We add to the ALJ’s facts that in addition to ordering Santiago to file a report, Ott denied the grievance at his level. Santiago then walked across the street and submitted the grievance at step two of the grievance procedure, the business administrator. A meeting was then conducted with Santiago, a number of other PBA representatives, a PBA attorney, and the business administrator. Santiago did not comply with Ott’s order and the City then initiated the disciplinary proceedings. ¶

The ALJ’s unfair practice analysis was limited. As for the alleged violation of Santiago’s right to union representation during an investigatory interview, the ALJ found that it was unreasonable for Santiago to believe that he was going to be disciplined when he received the order from Ott, and Santiago had ample time to consult with and did, in fact, consult with a union representative or legal counsel prior to responding to Ott. In addition, the ALJ found that Santiago never requested a representative before he responded. ¶

The principle entitling an employee to union representation during an investigatory interview that the employee reasonably believes may result in discipline was established in the private sector in NLRB v. Weingarten, Inc., 420 U.S. 251 (1975), and is known as the Weingarten rule. The rule applies in the New Jersey public sector. UMDNJ and CIR, 144 N.J. 511 (1996). ¶

We agree with the ALJ that Santiago’s Weingarten rights were not violated. Santiago was not interviewed after a request for union representation and before he had a right to consult with a representative. ¶

The PBA argues in its exceptions, however, that the Weingarten issue was tangential to the core issue. The PBA contends that the Chief’s order undermined Santiago’s ability to interact with unit members and will discourage unit members from seeking the union president’s advice in the future. The PBA asserts that “it is the perception of the membership which determines whether the employer interfered with the administration of the union.” This argument appears to go to an alleged violation of 5.4a(2), which prohibits an employer from “dominating or interfering with the formation, existence or administration of any employee organization.” The Director of Unfair Practices did not issue a complaint under 5.4a(2) and that provision thus cannot be the basis for an unfair practice finding. ¶

The PBA also asserts that the employer had no right to demand information and use its supervisory position to issue orders. We reject this exception. If a union representative alerts a police chief about problems in the internal affairs bureau, the chief has a right to investigate those allegations. We appreciate the impact a union president’s being forced to reveal his sources could have on unit members. However, the paramilitary nature of a police department and the critical concern about possible misconduct in an internal affairs bureau outweigh any potential chilling effect on police officers. ¶

We view separately the question of whether the City was required to comply with the grievance procedure, a vital component of any labor-management relationship. In this case, the Chief responded to the grievance by denying it at his step and the grievance then moved to the next step, the business administrator. Although no Complaint was issued on a 5.4a(5) allegation of refusing to process grievances presented by the majority representative, we would not find a violation had a complaint issued. The City complied with its obligations under the grievance procedure, but at the same time launched a separate investigation into the allegations of impropriety in internal affairs. It was Santiago’s refusal to comply with an order under that investigation, not retaliation for filing a grievance, that triggered the discipline. ¶

The PBA also argues that there should be some sort of privilege between the PBA President and the union membership that would render communications between them confidential. It cites cases from New York and the Ninth Circuit Court of Appeals.2/ As in Rutgers, The State Univ., P.E.R.C. No. 96-88, 22 NJPER 247 (¶27130 1996), we do not need to answer the question of whether a broad union representation privilege exists. We simply decide that under the facts of this case, Ott had the right to order Santiago to provide information about the allegations involving the internal affairs bureau and that Santiago did not have a privilege under the Act to refuse to provide that information. Under all these circumstances, the City did not violate the Act when it initiated discipline in response to Santiago’s refusal to provide the ordered information. Accordingly, we adopt the ALJ’s decision dismissing the unfair practice allegations and forward the remaining issues to the Civil Service Commission for its consideration under the terms of the Joint Order. ¶

OrderORDER ¶

The allegations in the unfair practice charge are dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Commissioners Fuller, Krengel and Watkins voted in favor of this decision. Commissioners Eaton and Voos voted against this decision. Commissioner Colligan recused himself. ¶

ISSUED: August 12, 2010 ¶

Trenton, New Jersey ¶

Note1/ These provisions prohibit public employers, their representatives or agents from: “(2) Dominating or interfering with the formation, existence or administration of any employee organization . . . (4) Discharging or otherwise discriminating against any employee because he has signed or filed an affidavit, petition or complaint or given any information or testimony under 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. (6) Refusing to reduce a negotiated agreement to writing and to sign such agreement. (7) Violating any of the rules and regulations established by the commission.” ¶

2/ In the Matter of City of Newburgh v. Harold R. Newman, 70 A.D.2d 362 (N.Y. App. Div. 1979); Seelig v. Shephard, 578 N.Y.S.2d (1991); Harvey’s Wagon Wheel v. NLRB, 550 F.2d 1139 (9th Cir. 1977) ¶