P.E.R.C. No. 2025-20, Trenton

Notice to employeesNOTICE TO EMPLOYEES PURSUANT TO AN ORDER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION AND IN ORDER TO EFFECTUATE THE POLICIES OF THE NEW JERSEY EMPLOYER-EMPLOYEE RELATIONS ACT, AS AMENDED, We hereby notify our employees that: ¶

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CITY OF TRENTON, Respondent, -and- Docket No. CO-2023-050 PBA LOCAL 11A, SOA, Charging Party. ¶

SynopsisSYNOPSIS ¶

On a jointly stipulated record, the Commission finds the Respondent, City of Trenton, violated section 5.4a(1) of the New Jersey Public Employer-Employee Relations Act in connection with an email sent by the City’s former Business Administrator (BA) to the President of the Charging Party, PBA Local 11A, Superior Officers Association (SOA). The BA’s email stated that a prior email sent by SOA’s President from a non-work email account to the Mayor of Trenton, urging an organizational restructuring of the Internal Affairs division of the Trenton Police Department, was “above the chain of command” and was “unacceptable.” The Commission finds the SOA President’s email was protected activity within the meaning of the Act, as it directly concerned workplace issues involving the SOA, it contained only the SOA’s recommendation about reorganization, and it did not seek negotiations or demand that the proposal be implemented. The Commission further finds that given its disciplinary tone, the BA’s response tended to interfere with and could have a chilling effect upon the exercise of protected rights, and the City’s exclusive and contractually reserved right to manage its operations was not a legitimate and substantial business justification for that response. The Commission finds the City’s interest in maintaining the chain of command, to the extent the SOA President’s email violated it, does not outweigh the SOA’s rights under the Act. ¶

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 CITY OF TRENTON, Respondent, -and- Docket No. CO-2023-050 PBA LOCAL 11A, SOA, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Palmer J. Richardson, Esq., Assistant City Attorney ¶

For the Charging Party, Alterman & Associates, LLC, attorneys (Stuart J. Alterman, of counsel) ¶

DECISION ¶

On a jointly stipulated record we address whether the Respondent, City of Trenton (City or Respondent), violated the New Jersey Public Employer-Employee Relations Act, N.J.S.A. 34:13A-5.1, et seq. (Act), in connection with an August 30, 2022 email sent by Adam Cruz, the City’s former Business Administrator (BA), to Jason Woodhead, the President of the Charging Party, PBA Local 11A, Superior Officers Association (SOA), (SOA or Charging Party). Cruz’s email stated among other things that a prior email sent by Woodhead from a non-work email account to the Mayor of Trenton (also dated August 30 and copied to Cruz), urging an organizational restructuring of the Internal Affairs (IA) division of the Trenton Police Department, was “above the chain of command” and was “unacceptable.” ¶

The SOA initially challenged Cruz’s email by filing with the Commission a “verified compliant,” together with an application for interim relief, on September 23, 2022. On September 26 the SOA filed, as an amendment, an unfair practice charge. On the same date a Commission Designee denied the SOA’s interim relief request. As amended, the charge alleges that Cruz’s email violated sections 5.4a(1), (2), (3), and (5)1/ of the Act, and seeks the following remedy: ¶

Directive from PERC ordering BA to undergo a class in proper Labor relations acumen and deportment. Directive from PERC to the BA to refrain from interfering with Union activity, to stop the anti-Union animus, and a directive to the City of Trenton to respond productively to President Woodhead’s letter and to implement President Woodhead’s suggestions. ¶

On January 3, 2023, the Director of Unfair Practices issued a complaint on the alleged violation of section 5.4a(1), determining that if true, those allegations may constitute unfair practices. The Director dismissed the alleged violations of section 5.4a(2), (3) and (5), finding they did not meet the Commission’s complaint issuance standard. ¶

On October 18, 2023, after the Charging Party failed to respond to two status requests, the Hearing Examiner administratively dismissed the complaint pursuant to N.J.A.C. 19:14-1.5(d).2/ On November 3 the Hearing Examiner denied the SOA’s motion to reopen. The SOA appealed the November 3 decision to the New Jersey Superior Court, Appellate Division. A preargument conference before the Appellate Division resulted in the SOA withdrawing its appeal on February 21, 2024, and the Commission reinstating the complaint on March 28 for further processing. P.E.R.C. No. 2024-44, 50 NJPER 399 (¶96 2024). ¶

The parties have waived a hearing examiner’s report and recommended decision, and agreed to submit a stipulated record to the Commission for a decision without a hearing, pursuant to N.J.A.C. 19:14-6.7. ¶

The record includes the joint Stipulation of Facts as well as each party’s brief with exhibits. In addition to the stipulated facts (reproduced verbatim below, email addresses and phone numbers redacted), the record indicates that the SOA is the majority representative of a unit of all officers between and including the ranks of Sergeant and Captain employed by the Division of Police of the Department of Public Safety of the City of Trenton. At all times relevant to the allegations of the SOA’s charge, the City and the SOA were parties to a collective negotiations agreement (CNA), effective January 1, 2019, through December 31, 2023. ¶

Stipulation of Facts ¶

I. Initial Proposal by Jason Woodhead ¶

1. Date of Communication: Sent on August 30, 2022, at 10:15am. ¶

2. Type of Communication: Email containing text with an attachment consisting of a Microsoft Word file that duplicates the text from the body of the email. ¶

3. Parties Involved: ¶

- Sender: Jason Woodhead in his capacity as President of the Superior Officers Association (SOA). ¶

- Recipients: ¶

- Mayor of Trenton ¶

- CC: Business Administrator Adam Cruz, Michael Schiaretti, and Richard Takach. ¶

4. Communication Details: ¶

- Email Account: Jason Woodhead sent the proposal from his non-work-related private Gmail account, used exclusively in his role as President and designated representative of the SOA. It is the same email listed at the bottom of the contents of the email as quoted below. ¶

- Content of Email: ¶

Subject: Organization of Internal Affairs ¶

As you are aware, there have been three separate instances in as many weeks, in which sworn Trenton Police Officers have been arrested and charged with criminal offenses related to their alleged off-duty behavior and conduct. ¶

Although these investigations are criminal in nature, there are always administrative components associated with these types of investigations beginning with the decisions as to suspensions, Loudermill hearings, etc. ¶

Regardless of the ultimate outcome in terms of the individual officers involved, the perception among the public and the press will undoubtedly be that of concern and frustration, as the mere timing and nature of the accusations will serve to undermine some of the progress that we have made in terms of public safety, and public trust. It goes without saying that the nature and timing of these incidents in totality reflect negatively upon the department, administration, and unions alike. ¶

Under the current organizational structure of the Trenton Police Department, Internal Affairs operates as a unit under the command of the Chief of Staff within the Office of the Police Director. In the past, Internal Affairs operated as a separate and dedicated bureau consisting of a dedicated captain, lieutenant, sergeant, and police detectives. The SOA’s position is that it is necessary to create an additional sergeant and captain position within the budget and to include those positions within the Table of Organization immediately, as doing so would bring us closer to compliance with the existing provisions of the City Code. ¶

We would then strongly encourage the administration to immediately amend the organizational structure of the department so that Internal Affairs once again falls into the organizational structure as a bureau, along with a full complement of detectives, a sergeant, a lieutenant, and a captain. ¶

While it is clear to me that the current situation in which we find ourselves is in no way a reflection of the leadership under the current administration or Police Director Wilson, it is inevitable that the public will express sentiments to the contrary. That said, I am convinced that the decision of the former police director to eliminate those leadership positions within Internal Affairs was done for reasons that were clearly not in the long-term best interest of the department and indirectly undermined perception among the rank and file. ¶

Restoring the functional integrity of the Internal Affairs function by restoring them to an independent bureau under an adequate command structure consisting of appropriate leadership positions would go a long way in terms of both accountability to the public and perception among rank and file within the department. We strongly recommend that the administration consider these administrative changes and implement them immediately. ¶

Your consideration regarding this matter is greatly appreciated. ¶

Jason Woodhead ¶

President ¶

Trenton Superior Officers Association ¶

[email address, phone number redacted] ¶

5. Note: The email also contained an attachment consisting of a Microsoft Word File consisting of the same content as the body of the email. ¶

II. Response by Business Administrator Adam Cruz ¶

6. Date of Response: Sent on August 30, 2022, at 3:45pm. ¶

7. Type of Communication: Email([redacted]) ¶

8. Responder: Adam Cruz in his official capacity as the Business Administrator of the City of Trenton. ¶

9. Response Details: ¶

- Recipient: Jason Woodhead referred to by his sworn rank of Lieutenant. ¶

- Full Text: ¶

Lt. Woodhead, ¶

This email to the Mayor or anyone else above the chain of command is unacceptable. NO MEETINGS SHOULD BE PLACED ON THE AGENDA TO ENTERTAIN THIS BEHAVIOR. The only policy maker in the Police Department is Director Wilson who reports to me. Any concerns should be brought to your supervisor and your supervisor approaches the Director. As the Union President and you want to approach it from this angle, there is also a process. Be guided accordingly. ¶

- Adam ¶

III. Contractual Context ¶

10. Recognition and Scope of Agreement: ¶

- The contract recognizes the SOA as the exclusive representative for collective bargaining, settlement of grievances, and other related activities (Article I, Section 1.01). ¶

11. Authorized Agents for Collective Bargaining: ¶

- The Mayor or his designee and the President of the Association or his designee are the designated bargaining agents (Article II, Section 2.01). ¶

12. Communication Channels: ¶

- The contract does not explicitly prohibit direct communication between the SOA President and elected officials. Woodhead’s communication was a proposal, not an invocation of any specific contract clause, and was aimed at addressing operational concerns within the department. ¶

IV. Memorandum Order 2024-004 ¶

13. Date: January 26, 2024 (Effective January 28, 2024) ¶

14. Content of Memorandum Order 2024-004: ¶

TRENTON POLICE DEPARTMENT ¶

POLICE DIRECTOR MEMORANDUM ¶

SUBJECT: ¶

Organization of the Police Department ¶

MEMORANDUM ORDER ¶

2024-004 ¶

SUPERCEDES: ¶

DATE: ¶

January 26, 2024 ¶

DISTRIBUTION: ¶

ALL COMMANDS ¶

Page 1 of 1 ¶

Effective Sunday, January 28, 2024, the following organizational changes shall take place: ¶

The Internal Affairs Section will become the Internal Affairs Bureau and be commanded by a Police Captain. ¶

This order supersedes the tenets of any previously issued orders which may be in conflict. ¶

By Order Of: ¶

Steve E. Wilson ¶

Police Director ¶

V. Waiver of Hearing ¶

Pursuant to N.J.A.C. 19:14-6.7, the parties agree to submit a stipulated record to the Commission for a decision without a hearing. They further agree to waive a hearing examiner’s report and recommended decision. ¶

The parties recognize that the facts as stipulated constitute the complete record to be submitted to the Commission. To the extent that the stipulated record is insufficient to sustain the Charging Party’s burden of proof by a preponderance of the evidence, the complaint may be dismissed by the Commission. The Respondent must rely upon the sufficiency of the stipulated record to sustain any affirmative defenses it has asserted or to rebut or disprove the existence of a prima facie case established by the Charging Party. ¶

Certification by Jason Woodhead: ¶

I, Jason Woodhead, certify that the above stipulation of facts is accurate and true to the best of my knowledge. A copy of Memorandum Order 2024-004 is included in section IV as an addendum. ¶

Addendum: ¶

Copy of Memorandum Order 2024-004.3/ ¶

Arguments of the Parties ¶

The SOA argues Cruz’s response to Woodhead’s email to the Mayor amounts to interference under section 5.4a(1) of the Act, and infringement of public employees’ rights under Article I, Paragraph 19 of the New Jersey Constitution to present proposals to the State or its subdivisions through representatives of their own choosing. The SOA also argues that Cruz violated a CNA provision that permits direct communication between Woodhead and the Mayor; and that no internal policy or chain-of-command protocol supersedes that contractual right or the protections of the Act and Constitution. The SOA further contends that Cruz’s actions were motivated by the content and context of Woodhead’s protected union activity, that the City cannot prove otherwise, and that Cruz’s interference had a chilling effect on the SOA’s ability to advocate for its members. ¶

The City argues, among other things, that Woodhead’s email to the Mayor was not “a lawful execution of his authority as SOA President” because the organizational structure of the IA department is exclusively (and contractually) a matter “reserved to the City and its management designee” ; that the email refers to rank and file officers who are outside of Woodhead’s authority to represent; and that Woodhead’s communication was nothing more than an attempt to create a captain’s position that Woodhead (then a Lieutenant) stood to be a possible beneficiary of. The City further argues that even if the Commission finds that Cruz’s email violated the Act, the complaint should nevertheless be dismissed because Cruz is no longer in the City’s employ,4/ rendering moot any relief sought as to actions the SOA “seeks to garner at the expense of Mr. Cruz,” as he is no longer the City’s Business Administrator. ¶

Analysis ¶

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). ¶

Here, we find that Woodhead’s email to the Mayor was protected activity within the meaning of the Act. In City of Hackensack, P.E.R.C. No. 78-71, 4 NJPER 190 (¶4096 1978), aff’d (App. Div. 1979), we held that a fire union president’s “presentation of a position to an elected official” by letter to the city’s mayor (relaying union concerns about unsafe conditions of fire patrol vehicles) was “indisputably a protected activity,” notwithstanding the city’s charge that in writing directly to the mayor the union president bypassed the chain of command. Id. ¶

Our decision in Hackensack is consistent with the New Jersey Constitution at Article 1, Para. 19, which guarantees public employees the right to present, “through representatives of their own choosing,” their proposals and grievances to “the State, or any of its political subdivisions or agencies.” Section 5.3 of the Act implemented this constitutional provision “through the use of majority representatives selected by the employees in an appropriate unit.” N.J.S.A. 34:13A-5.3; Watchung Hills Reg. High School Dist. Bd. of Ed., P.E.R.C. No. 2024-12, 50 NJPER 226 (¶50 2023) (citing, Dover Tp., P.E.R.C. No. 77-43, 3 NJPER 81, 83 (1977)). ¶

Woodhead’s email directly concerned workplace issues involving the SOA. It conveyed to the Mayor the SOA’s viewpoint that the department’s Internal Affairs operations could be improved by administrative reorganization. Woodhead’s email directly involved SOA unit positions,5/ as evidenced by the fact that the City ultimately reorganized Internal Affairs to become an independent Bureau commanded by a Police Captain, consistent with Woodhead’s recommendation. We thus find the fact that Woodhead’s email also discussed non-unit rank and file officers did not place it “outside the scope of his union authority,” as the City contends. ¶

The City contends that Woodhead’s email to the Mayor was not “a lawful execution of his authority as SOA President” because the organizational structure of the IA department is exclusively and contractually “reserved to the City and its management designee.” It is true that the decision of a public employer to reorganize a department or other administrative units is a managerial prerogative exempt from negotiations.6/ Thus, we might agree that Woodhead acted beyond the scope of his authority as SOA President if his email to the Mayor had proposed or demanded negotiations over the reorganization of the IA department. However, Woodhead’s email contained only the SOA’s recommendation on that subject. It asked the Mayor to “consider” that recommendation. It did not seek negotiations or demand that the SOA’s proposal be implemented. ¶

In stating that Woodhead’s email to the Mayor was “unacceptable,” Cruz’s email had the tone of a reprimand even if it did not impose or threaten specific discipline. See, Pleasantville Bd. of Ed., P.E.R.C. No. 2019-34, 45 NJPER 313 (¶83 2019) (finding predominantly disciplinary a supervisor’s written statements that were not “neutral in tone” and that “passed judgment” upon the appropriateness of an employee’s conduct). Given its disciplinary tone, we find Cruz’s response tended to interfere with and could have a chilling effect upon Woodhead’s exercise of protected rights. City of Hackensack, supra. ¶

We find the City’s exclusive and contractually reserved right to manage its operations does not constitute a legitimate and substantial business justification for Cruz’s response, in light of our determination that Woodhead had a statutory right to make the SOA’s proposal known to the Mayor. The City’s interest in maintaining the chain of command, to the extent the City contends Woodhead’s email violated it,7/ does not outweigh Woodhead’s rights under the Act. City of Hackensack, supra, (finding union’s failure to present position through chain of command posed “minimal” injury “at best” to city’s claimed interest in preserving efficiency of departmental operations). ¶

We further find that the complaint is not rendered moot by either the fact Cruz is no longer employed by the City, or that the City subsequently reorganized its Internal Affairs operations in a manner consistent with Woodhead’s email. We find the conduct exemplified by Cruz’s email to be capable of repetition. State of New Jersey (OER), P.E.R.C. No. 2024-56, 51 NJPER 31 (¶9 2024) (citing, Galloway Tp. Bd. of Ed. v. Galloway Tp. Ed. Ass’n, 78 N.J. 25, 46-47 (1978)), recon. den., P.E.R.C. No. 2025-13, 51 NJPER 147 (¶36 2024). As such, we find an order directing the City to cease and desist from such conduct to be a sufficient remedy for the independent 5.4a(1) violation at issue, which the SOA has established by a preponderance of the evidence in the undisputed record. ¶

OrderORDER ¶

The Respondent City of Trenton is ordered to: ¶

A. Cease and desist from: ¶

Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act by directing the President of PBA Local 11A, Superior Officers Association (SOA), to refrain from emailing or otherwise presenting the SOA’s position to elected officials, including but not limited to “the Mayor or anyone else above the chain of command,” on matters involving or affecting terms and conditions of employment of SOA unit members, in the absence of a legitimate and substantial business justification for doing so. ¶

B. Take the following action: ¶

1. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as ¶

Appendix “A.” Copies of such notice shall, after being signed by the Respondent’s authorized representative, be posted immediately and maintained by it for at least sixty (60) consecutive days. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by other materials. ¶

2. Notify the Chair of the Commission within twenty ¶

(20) days of receipt what steps the Respondent has taken to comply with this ORDER. ¶

BY ORDER OF THE COMMISSION ¶

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

ISSUED: December 12, 2024 ¶

Trenton, New Jersey ¶

Notice to employeesWE SHALL, cease and desist from interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act by directing the President of PBA Local 11A, Superior Officers Association (SOA), to refrain from emailing or otherwise presenting the SOA’s position to elected officials, including but not limited to “the Mayor or anyone else above the chain of command,” on matters involving or affecting terms and conditions of employment of SOA unit members, in the absence of a legitimate and substantial business justification for doing so. ¶

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” ; “(2) Dominating or interfering with the formation, existence or administration of any employee organization” ; “(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” ; 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.” ¶

2/ This regulation allows the dismissal of a complaint “[w]here it appears . . . that the charging party has no further interest in processing its charge.” ¶

3/ The Stipulation of Facts as reproduced herein (bolded type, number format in original) was signed by the SOA on August 8, 2024, and by the City on August 13, 2024. ¶

4/ We note that this information is not in the joint Stipulation of Facts. ¶

5/ As superior officers, SOA members assigned to IA would also be involved in the conduct of IA investigations. ¶

6/ See, e.g., Tp. of Nutley, P.E.R.C. No. 86-26, 11 NJPER 560 (¶16195 1985); Cherry Hill Twp. Bd. of Ed., P.E.R.C. No. 81-90, 7 NJPER 98 (¶12040 1981); Tenafly Bd. of Ed., P.E.R.C. No. 83-123, 9 NJPER 211 (¶14099 1983); Irvington Policemen’s Benevolent Ass’n v. Irvington, 170 N.J. Super. 539 (App. Div. 1979). ¶

7/ The stipulated record indicates Woodhead “sent the proposal from his non-work-related private Gmail account, used exclusively in his role as President and designated representative of the SOA.” ¶

Notice to employeesDocket No. CO-2023-050 City of Trenton (Public Employer) Date: By: This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced or covered by any other material. If employees have any question concerning this Notice or compliance with its provisions, they may communicate directly with the Public Employment Relations Commission, 495 West State Street, PO Box 429, Trenton, NJ 08625-0429 (609) 292-9830 APPENDIX “A” ¶