P.E.R.C. No. 2025-18, NJ/State (Motor Vehicles)

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of STATE OF NEW JERSEY (MOTOR VEHICLE COMMISSION), Respondent, -and- Docket No. CO-2022-201 CWA LOCAL 1038, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Commission denies a motion for summary judgment filed by the State of New Jersey, Motor Vehicles Commission (MVC), seeking to dismiss a complaint issued on an unfair practice charge filed by CWA Local 1038. The charge alleges MVC committed a 5.4a(1) violation under the New Jersey Public Employer-Employee Relations Act when MVC managers directed certain CWA members to remove buttons displaying the words “CWA LOCAL 1038 BULLY PATROL” during work hours. The Commission finds that the wearing of the pins was sufficiently related to activity protected by the Act, and that the employer was aware of that activity. The Commission further finds that MVC does not claim to have been enforcing an existing workplace policy, or even a dress code, when it ordered CWA members to remove their buttons. Absent specific factual details as to how or to what extent that conduct interfered with or prevented MVC from effectively achieving its agency goals, the Commission finds that whether MVC had a legitimate and substantial business reason for its directive presents a material factual dispute requiring a hearing. ¶

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 STATE OF NEW JERSEY (MOTOR VEHICLE COMMISSION), Respondent, -and- Docket No. CO-2022-201 CWA LOCAL 1038, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, ¶

Matthew J. Platkin, Attorney General of New Jersey ¶

(Gary W. Baldwin, Deputy A.G., on the brief) ¶

For the Charging Party, ¶

Weissman & Mintz LLC, attorneys (Jason L. Jones, on the brief) ¶

DECISION ¶

In this matter we consider a motion for summary judgment filed on June 28, 2024 by the Respondent, State of New Jersey, Motor Vehicle Commission (Respondent or MVC), on an unfair practice charge (Charge) filed by the Charging Party, CWA Local 1038 (Charging Party or CWA) on April 4, 2022, as amended on April 6.1/ As amended, the Charge alleges the Respondent violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-5.1, et seq. (Act), specifically section 5.4a(1)2/, in connection with alleged statements made and actions taken by MVC managers in December of 2021 and March of 2022, in response to the wearing of buttons displaying the words “CWA LOCAL 1038 BULLY PATROL” by certain CWA members during work hours. ¶

The Director of Unfair Practices issued a Complaint on the Charge on May 22, 2023.3/ On August 15, 2023, the Respondent filed an Answer denying all allegations and asserting separate and affirmative defenses. Discovery was completed on February 27, 2024. ¶

In support of its motion for summary judgment, the Respondent filed a brief, exhibits, and the certification of Gary W. Baldwin, DAG. CWA filed a brief in opposition, exhibits, and the certification of Jason L. Jones, Esq.4/ ¶

The Amended Unfair Practice Charge ¶

As amended, CWA’s Charge states the following allegations: ¶

On 12/14/2021, Shop Steward [A.G.] was approached by her manager [J.K.]. Mr. [K.] directed her to remove her CWA Local 1038 Bully Patrol Button. [A.G.] became very upset. Her manager then said “Are you refusing to remove it?” [A.G.] felt very intimidated and began to cry. She ended up leaving for the day. Mr. [K.] violated [A.G.] and other bargaining unit members’ rights by interfering with, restraining and restricting them from exercising their rights guaranteed to them by this act. ¶

The following day an email went out to supervisors and managers from Director [M.H.]. It stated that if they saw workers wearing the Bully Patrol buttons, they should notify him. ¶

This email trickled down to the bargaining unit members, which caused panic and fear. Because of this email, our members believe they could be disciplined or reported to Trenton for wearing union buttons. Mr. [H.] violated the rights of the bargaining unit members by interfering with, restraining, and restricting them from exercising their rights guaranteed to them by this act. ¶

On 3/28/22, [E.C.] was called into the Manager’s office by [J.K.]. Mr. [K.] directed him to remove his Bully Patrol Button. Mr. [C.] complied. On 3/29/22, [M.J.S.] and [J.H.] were called in by Mr. [K.] and directed to remove their Bully Patrol Buttons. Out of fear of discipline, they complied as well. ¶

Summary of Facts ¶

It is undisputed that MVC has an agency facility known as Rio Grande located in North Cape May, New Jersey, and that beginning in November of 2021, CWA members employed at the Rio Grande facility began wearing buttons displaying the words “CWA LOCAL 1038 BULLY PATROL” during working hours. ¶

The parties’ briefs and certifications do not state any specific reason why CWA members began wearing these buttons. The record includes as an exhibit a copy of a CWA grievance dated November 18, 2021, objecting to the conduct of a specific MVC supervisor, L. (last name unspecified), as being “rude,” “aggressive,” and “intimidating” toward CWA members “on a daily basis,” alleging that this created a “toxic, unhealthy working environment” at Rio Grande, and requesting that this supervisor be reassigned to a work location other than Rio Grande. The grievance alleged that this supervisor also asked the CWA Shop Steward “where she received her Union buttons and wanted to know when they met with the Union.” In connection with these allegations, the grievance alleged a violation of Article D26 of the parties’ collective negotiations agreement (CNA).5/ ¶

MVC alleges in its statement of facts that on or about December 7, 2021, Rio Grande Manager J.K. was asked by several customers about the CWA buttons worn by CWA Shop Steward A.G. at the check-in area at the front of the building, and further that J.K. received “several comments and questions from customers regarding bullying at the Rio Grande location.” ¶

It is undisputed that on December 14, 2021, J.K. (or an MVC manager) directed Shop Steward A.G. to remove her CWA button. CWA alleges in its statement of facts that this caused A.G. to become very upset, whereupon J.K. asked A.G. if she was “refusing” to remove the button, causing A.G. to feel very intimidated, to begin crying, and to end up “leaving work that day.” In its statement of facts, MVC states that both A.G. and another CWA member, J.H., were asked on December 14 to remove their CWA buttons by an MVC manager and that thereafter, both employees walked out stating they were sick. MVC alleges that supervisor L.D. was the only remaining senior staff member at Rio Grande after A.G. and J.H. left that day. ¶

It is undisputed that on December 15, 2021, MVC’s Director of Agency Operations emailed all MVC Agency locations stating: “Please advise if your agency has staff who wear CWA Bully Patrol Pins or buttons. Do not actively ask staff but advise me and Mike if senior management has seen them worn.” CWA repeats its allegation that this email “trickled down” to CWA unit members, causing them fear and panic of being disciplined or reported for wearing union buttons. The record includes a copy of a subsequent email from the Director of Operations, dated March 2, 2022, and marked “Confidential,” stating: “To date the only manager or supervisor that reported seeing or even hearing about the Bully Pins was [J.K.] and [L.D.]. All 39 other agencies are unaware of their existence or have not seen them worn.” ¶

MVC alleges that as of December 18, 2021, CWA members E.C., J.H., and A.G. continued to wear the buttons at Rio Grand during work hours, and that on December 20, A.G. wore the button all day, while J.H. wore it until lunchtime. MVC further states that no CWA member was terminated or otherwise disciplined for wearing CWA buttons. ¶

Arguments of the Parties ¶

Respondent MVC argues that the complaint must be summarily dismissed because the requests to remove the CWA buttons were appropriate, and the CWA buttons interfered with job performance. MVC maintains that “disruptions in MVC operations” occurred when the Rio Grande manager’s “attention from his other job duties and responsibilities” was required by the comments and questions of “several customers” regarding bullying at the Rio Grande location, which were prompted by CWA buttons worn at the check-in area at the front of the building. ¶

MVC further argues that it acted properly and for legitimate business reasons, irrespective of the Charging Party’s claims of anti-union animus. CWA members’ belief that they could be disciplined or reported for wearing union buttons is speculative, MVC argues, while there is no evidence in the record that any CWA member was disciplined or terminated over the wearing of CWA buttons. ¶

CWA opposes summary judgment because, it argues, there are genuine issues of material fact in dispute, as shown by MVC’s answer to the complaint which denies each allegation in the charge. CWA further argues that the resolution of the relevant legal and factual issues in this matter demands that the parties have an opportunity to proffer legally competent testimonial and documentary evidence before a Hearing Examiner. CWA also argues that when wearing their CWA buttons in the workplace, members engaged in activity protected by the Act; and that the Respondent knew of that activity and was hostile to it. ¶

CWA further argues that Respondent has failed to establish a legitimate business reason for ordering unit members to remove their union buttons. MVC’s assertion that a manager’s unspecified job duties were interfered with by having to respond to inquiries about the buttons from unnamed customers on unidentified dates, CWA contends, is pretextual. CWA argues that this claim is also unsupported by legally competent record evidence, which reinforces the need for a factual hearing. ¶

Analysis ¶

The Summary Judgment Standard ¶

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. 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). N.J.A.C. 19:14-4.8(e) provides: ¶

If it appears from the pleadings, together with the briefs, affidavits and other documents filed that there exists no genuine issue of material fact and that the movant or cross-movant is entitled to its requested relief as a matter of law, the motion or cross-motion for summary judgment may be granted and the requested relief may be ordered. ¶

In determining whether there exists a “genuine issue” of material fact that precludes summary judgment, we must “consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party.” Brill, 142 N.J. at 540. We “must grant all the favorable inferences to the non-movant.” Id. at 536. A motion for summary judgment should be granted with extreme caution and may not be substituted for a plenary trial. Baer v. Sorbello, 177 N.J. Super. 183, 185 (App. Div. 1981), certif. denied, 87 N.J. 388 (1981). Summary judgment “should be denied unless the right thereto appears so clearly as to leave no room for controversy.” Saldana v. DeMedio, 275 N.J. Super. 488, 495 (App. Div. 1995). ¶

Section 5.4a(1) ¶

An employer independently violates subsection 5.4a(1) if its action tends to interfere with an employee’s statutory rights and lacks a legitimate and substantial business justification. Orange Bd. of Ed., P.E.R.C. No. 94-124, 20 NJPER 287 (¶25146 1994); Mine Hill Tp., P.E.R.C. No. 86-145, 12 NJPER 526 (¶17197 1986); New Jersey Sports and Exhibition Auth., P.E.R.C. No. 80-73, 5 NJPER 550 (¶10285 1979). Proof of actual interference, intimidation, restraint or coercion is unnecessary. The mere tendency to interfere is sufficient to prove a violation. Mine Hill Tp. ¶

Thus, a party asserting an independent violation of 5.4a(1) must establish that the employer engaged in some action that would tend to interfere with, intimidate, coerce or restrain an employee in the exercise of statutory rights. If proven, the inquiry then becomes whether the employer had a legitimate and substantial business justification for its actions which outweighs any interference. The two-prong test is based upon consideration of the totality of facts in each case and a balancing of the parties’ interests. N. Warren Reg. Bd. of Ed. and Bridge, P.E.R.C. No. 2016-85, 43 NJPER 31 (¶9 2016). ¶

Applying the above standards here, and granting all favorable inferences to CWA, the non-moving party, we deny MVC’s motion for summary judgment. The record presented supports that the wearing of the “Bully Patrol” pins was sufficiently related to activity protected by our Act (including the filing of grievances), and there is no dispute that the employer was aware of that activity. We find, at a minimum, that the question of whether MVC had a legitimate and substantial business reason for ordering CWA members to remove their union buttons presents a material factual dispute requiring a hearing. ¶

The Respondent does not claim to have been enforcing an existing workplace policy governing political speech, or even a dress code, when it ordered CWA members to remove their buttons. Nor does the record contain specific factual details as to how or to what extent the wearing of buttons by CWA members at the Rio Grande MVC interfered with or prevented the agency from effectively achieving its goals. ¶

Although MVC alleges customer inquiries about the buttons distracted its Rio Grande manager from attending to “his other job duties and responsibilities,” the record contains no facts undisputedly establishing how the inquiries interfered with the manager’s duties; the number and substance of the alleged customer inquiries; or the amount of time it took for the manager to respond to them. ¶

The education cases relied upon by Respondent, to support its argument that removal of the CWA buttons was necessary to avoid disruption of MVC operations, are distinguishable. Both cases involved school boards who had existing policies regarding political activities in the workplace, and whose enforcement of those policies against union activity (such as the wearing of buttons and posting of signs in the classroom or in the presence of students), was found to have a legitimate basis, as such conduct could potentially interfere with the government’s ability to effectively achieve its goal of providing students with a thorough and efficient education. See, Green Tp. Educ. Ass’n v. Rowe, 328 N.J. Super. 525 (App. Div. 2000) (board could enforce conflict-of-interest policy to bar teachers from wearing union buttons (reading “NJEA SETTLE NOW” in reference to the recent expiration of their CNA) in presence of students in school building); Parsippany-Troy Hills Educ. Ass’n v. Parsippany-Troy Hills Bd. of Educ. (App. Div. 2018) (board could enforce existing policy to bar teachers from posting hundreds of signs on classroom windows and doors that displayed union’s name and, above it, the words “I AM PROUD TO BE A TEACHER” as part of campaign to compel board to enter a contract). ¶

The Respondent has not otherwise asserted any particular “special circumstances” that would justify the disputed action here. Cf., State of New Jersey (Dept. of Corrections), P.E.R.C. No. 97-145, 23 NJPER 388 (¶28176 1997) (safety/security-related need to prevent possible disturbances among inmates constituted “special circumstances” justifying employer’s ban on wearing of union t-shirts within correctional facility’s inner perimeter). ¶

In the absence of such facts, we are unable to summarily determine whether the Respondent had a legitimate and substantial business justification for its disputed actions, or that it is entitled to relief as a matter of law. ¶

OrderORDER ¶

The motion for summary judgment filed by the State of New Jersey (Motor Vehicle Commission) is denied. We return this matter to the Director of Unfair Practices for further processing. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hennessy-Shotter, Commissioners Ford, Higgins, and Papero voted in favor of this decision. None opposed. Commissioners Eaton and Kushnir recused themselves. ¶

ISSUED: November 26, 2024 ¶

Trenton, New Jersey ¶

Note1/ The original Charge was unsigned. The amended Charge included a signature and modified the sections of the Act allegedly violated by Respondent. The Statement of Charge was otherwise unchanged from the original. ¶

2/ This provision prohibits 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/ Processing of the Charge was delayed in 2022 and again in 2023 while the parties engaged in settlement discussions. Processing was also delayed in 2023 when Respondent assigned a different Deputy Attorney General (DAG) to the case, and again in 2024 due to a medical leave. ¶

4/ The certifications of the parties’ attorneys do not contain first-hand knowledge of the facts and are largely procedural in nature. ¶

5/ The record does not contain a copy of the CNA. ¶