P.E.R.C. No. 2016-62, Irvington B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of IRVINGTON BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2014-181 IRVINGTON EDUCATION ASSOCIATION, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission adopts a Hearing Examiner’s recommended decision in an unfair practice case and dismisses a complaint alleging that the Board violated N.J.S.A. 34:13A-5.4a(1) and (3) by not allowing a unit employee to have her preferred union representative at a meeting regarding disciplinary allegations against her, and instead summoning a union representative who happened to also be witness to the incident under investigation. The Commission finds that the unit member’s Weingarten rights were not violated because the preferred union representation was unavailable and the administration concluded the meeting upon learning that the present representative was a witness to the incident. ¶

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 IRVINGTON BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2014-181 IRVINGTON EDUCATION ASSOCIATION, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Hunt, Hamlin & Ridley, attorneys (Kara Beaufort, of counsel) ¶

For the Charging Party, Oxfeld Cohen, attorneys (Gail Oxfeld Kanef, of counsel) ¶

DECISION ¶

On February 10, 2014, Irvington Education Association (Association) filed an unfair practice charge against Irvington Board of Education (Board), alleging that the Board violated section 5.4a (1) and (3) of the New Jersey Employer Employee Relations Act (Act)1/ when it did not attempt to arrange to have unit employee Sandra Murray’s preferred union representative at a meeting regarding disciplinary allegations against her, and instead summoned a union representative who was also a witness to the incident in question. ¶

On January 14, 2015, the Director of Unfair Practices issued a Complaint and Notice of Hearing. On February 27, the Board filed an Answer. On May 28, Hearing Examiner Jonathan Roth conducted a hearing at which the parties examined witnesses and presented exhibits. Post-hearing briefs were filed by September 25. ¶

On January 29, 2016, the Hearing Examiner issued a Report and Recommended Decision finding that the Board did not violate the Act and dismissing the Complaint. H.E. No. 2016-16, __ NJPER __ (~_____ 2016). We adopt and incorporate into this decision the comprehensive findings of fact made by the Hearing Examiner. H.E. No. 2016-16, 2 - 17. ¶

The Association has filed exceptions, asserting that Murray’s Weingarten rights were violated when the Board did not attempt to arrange to have her preferred union representative, Hoffleur-Matteur, attend the meeting. The Association also asserts that Murray’s Weingarten rights were violated because Digiore, the union representative who did attend the meeting and was also a witness to the incident, did not provide Murray with effective representation. The Board declined to file a response to the Association’s exceptions. ¶

At the outset, we note that the Association relies solely on Anheuser-Busch, Inc. v. NLRB, 338 F.3d 267 (4th Cir. 2003) in support of its exceptions. The Commission and the New Jersey Supreme Court have held that experiences and adjudications under the federal Labor-Management Relations Act (LMRA) are appropriate guides in determining unfair practices cases because the language, content and purposes of the Act and the LMRA are the same. In re Bridgewater Tp., 95 N.J. 235, 240-241 (1984); Galloway Tp. Bd. of Ed. v. Galloway Tp. Ass’n of Educ. Sec., 78 N.J. 1, 9 (1978); Lullo v. IAFF, 55 N.J. 409, 429 (1970). This agency considered the issue of whether a violation of the Act occurs when an employee is not provided with the union representative of his or her choosing once before in a matter that did not proceed past the interim relief stage. Union Cty., I.R. No. 99-17, 29 NJPER 333 (¶103 1999). Accordingly, we find reliance on federal precedent in the private sector to be appropriate. ¶

NLRB v. Weingarten, Inc., 420 U.S. 251 (1975) is the seminal case in the private sector that found that an employee is entitled to union representation during an investigatory interview that the employee reasonably believes may result in discipline. We adopted the Weingarten rule in East Brunswick Bd. of Ed., P.E.R.C. No. 80-31, 5 NJPER 398, 399 (¶10206 1979), aff’d in part, rev’d in part, NJPER Supp.2d 78 (¶61 App. Div. 1980), and it was approved by our Supreme Court in University of Medicine and Dentistry of New Jersey and Committee of Interns and Residents, 144 N.J. 511 (1996). There are however the following conditions on the exercise of the Weingarten rule. First, the employee who is to be interviewed must request representation. Second, the interview must be investigatory. Third, the right to representation may not interfere with legitimate employer prerogatives. One such prerogative is to decide not to interview an employee at all if the employee insists upon representation; the employee must then choose between having an interview unaccompanied by a representative or having no interview. Fourth, while the employer cannot compel a representative to remain silent during an interview, it does not have a duty to bargain with the representative. A representative may assist the employee and attempt to clarify the facts, but may not obstruct the employer's right to conduct that interview or turn it into an adversarial contest. Cases involving alleged Weingarten violations are extremely fact sensitive and must be considered on a case by case basis. State Police, P.E.R.C. No. 2002-8, 27 NJPER 332 (¶32119 2001) . ¶

In Anheuser-Busch, while a brewery employee was being questioned by management he requested union representation by a specific representative who was familiar with the facts underlying the matter about which he was being questioned. Management declined the request, assuming that the requested union representative was at lunch. The requested union representative had previously shortened his lunch to represent employees. Management called another union representative who was at another facility and arrived within fifteen minutes. The present union representative renewed the employee’s request for the other union representative. Management denied the request, stating that the employee should respond to their questions immediately. The employee declined to discuss the matter without the requested union representative and was sent home for the day. The next day, the employee again met with management, and again was denied the presence of his requested union representative. The employee was questioned without his preferred union representative and was ultimately disciplined. ¶

The Anheuser-Bush court upheld the “Representation Rule” , i.e., the right to specify the union representative of one’s choice, absent extenuating circumstances, and traced the decisional history of the rule. The court reasoned that during the initial questioning both the preferred union representative and the union representative who was summoned to the meeting were equally unavailable, and the employee should have been provided with the preferred representative. Therefore, it found that management’s failure to arrange for the employee’s preferred represetentative to be present violated the Labor-Management Relations Act. ¶

We find the Association’s reliance on Anheuser-Busch to be misplaced. There, the court found that when the employee made his initial request for his preferred union representative, that representative, as well as the union representative who was summoned to the meeting, were equally unavailable. Here, the preferred union representative was unavailable (Hoffleur-Matteur who was attending a professional training at nearby building), while the summoned union representative was present in the building and readily available (Digiore). No evidence was presented to rebut Chester’s testimony that Hoffleur-Matteur was attending a professional training and unavailable or to establish that Digiore was equally unavailable and summoned anyway. Given that extenuating circumstances existed (Hoffleur-Matteur being unavailable due to her attendance at a professional training out of the building), it was reasonable and consistent with the principles espoused in Weingarten that Digiore, the present and available union representative, was called to the meeting. ¶

The Association next asserts that Murray’s Weingarten rights were violated because Digiore could not provide effective union representation since she was also a witness to the incident. Chester, Digiore, Biggs-White and Murray all testified consistently that once it was disclosed that Digiore was a witness to the incident, Chester quickly concluded the meeting, realizing that Digiore could not serve in the dual role of union representative and witness. Murray was the only witness to testify that Chester continued to question her after Digiore was dismissed. The Hearing Examiner did not credit Murray’s testimony, and we agree that the sufficient, credible and competent evidence in the record does not support Murray’s contention that Chester questioned her after Digiore was dismissed. N.J.S.A. 52:14B-10 (c). Chester then requested that Digiore, Biggs-White and Murray produce written statements regarding their versions of the incident. In Anheuser-Busch, the employee was ultimately disciplined as a result of information obtained during questioning where his preferred union representative was not provided. Here, the Superintendent testified that while she and Chester had a brief conversation about the incident, Murray was ultimately disciplined as a result of the information gleaned from the written statements. The actions taken by both Chester and the Superintendent were both reasonable and consistent with the directives of Weingarten that once an employee asserts his or her Weingarten rights, the interview can be stopped and the employer can render a decision on information obtained through other means. Weingarten, 420 U.S. at 258. While in this instance the meeting was not stopped because Murray requested union representation, but rather because the available union representative was also a witness to the incident, the Weingarten principle discussed above is equally applicable. ¶

OrderORDER ¶

The complaint is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hatfield, Commissioners Bonanni, Boudreau, Eskilson, Voos and Wall voted in favor of this decision. None opposed. Commissioner Jones was not present. ¶

ISSUED: March 31, 2016 ¶

Trenton, New Jersey ¶

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. (3) Discriminating in regard to hire or tenure of employment or any terms or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this act.” ¶