P.E.R.C. No. 2025-26, Bloomfield Tp

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of TOWNSHIP OF BLOOMFIELD, Respondent, -and- OAL Dkt. No. PRC 02350-23 PERC Dkt. No. CO-2022-214 INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 68, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission modifies the Initial Decision on remand of an Administrative Law Judge (ALJ) that partially dismissed Local 68's unfair practice charge and reduced the Township’s disciplinary sanction against an employee for violating its “no-recording” policy from termination to a 45- day suspension. The Commission determines that the Township’s policy does not violate the Act because it serves a legitimate business interest in protecting employees’ ability to communicate freely with each other, as well as preventing sensitive third party information from being distributed. However, the Commission determines that, under these circumstances, the Township’s application of its policy to discipline an employee after she and Local 68 used her workplace recordings as evidence in her departmental disciplinary hearing interfered with her exercise of her protected rights in violation of subsection 5.4a(1) of the Act. The Commission therefore modifies the ALJ’s remedy and rescinds the reduced 45-day suspension. ¶

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 TOWNSHIP OF BLOOMFIELD, Respondent, -and- OAL Dkt. No. PRC 02350-23 PERC Dkt. No. CO-2022-214 INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 68, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Antonelli Kantor Rivera, attorneys (John J.D. Burke, of counsel) ¶

For the Charging Party, Kroll Heineman Ptasiewicz & Parsons, LLC, attorneys (Raymond G. Heineman, of counsel) ¶

DECISION ¶

This case returns to the Commission on exceptions to an Office of Administrative Law (OAL) Administrative Law Judge’s (ALJ) October 25, 2024 Initial Decision on remand (Remand Decision) pursuant to the Public Employment Relations Commission’s (PERC or Commission) April 25, 2024 decision. See P.E.R.C. No. 2024-51, 50 NJPER 434 (¶106 2024). ¶

This case is a consolidation of an unfair practice case before this Commission and two Civil Service Commission (CSC) appeals of the Township of Bloomfield’s (Township) final notices of disciplinary action (FNDA) issued against an employee (Y.M.). The unfair practice charge filed by the International Union of Operating Engineers, Local 68 (Local 68), alleges that the Township violated N.J.S.A. 34:13A-5.4a(1) and 5.4a(3)1/ of the New Jersey Employer-Employee Relations Act (Act), when it terminated Y.M. for submitting recordings of workplace conversations as part of her defense in her departmental hearing for her first preliminary notice of disciplinary action (PNDA) that preceded her first FNDA. ¶

On March 7, 2024, following a hearing, the ALJ issued an Initial Decision sustaining the first FNDA (90-day unpaid suspension for insubordination) issued by the Township against Y.M. and modifying the second FNDA (termination for violating recording policy) to a 45-day suspension. As the ALJ found that termination for violating the no-recording policy was excessive in the context of the CSC appeal, he did not address the merits of the unfair practice charge. (Initial Decision at 17). The ALJ dismissed the unfair practice charge, finding no basis to examine whether the policy is invalid on its face or whether Y.M. had sufficient justification to violate it under the circumstances. Ibid. The ALJ also found that a general challenge to the policy might be untimely. Ibid. Both parties filed exceptions with the Commission to the ALJ’s Initial Decision. 50 NJPER at 435. ¶

On April 25, 2024, PERC issued a decision remanding the case back to the ALJ to determine whether Local 68's unfair practice charge was timely filed and, if so, “whether the Township’s enforcement of its no recording policy against Y.M. violated subsections 5.4a(1) and/or 5.4a(3) of the Act.” 50 NJPER at 435. ¶

On October 25, 2024, after the parties made additional submissions to the ALJ, the ALJ issued his remand decision sustaining in part, and dismissing in part, Local 68's unfair practice charge. The ALJ found that the Township had a legitimate business justification for the policy in general and that it was not enacted to interfere with employees’ rights. (Remand Decision at 16). The ALJ determined that Local 68's unfair practice charge was timely filed concerning its enforcement against Y.M., but explained that he was only addressing the unfair practice charge through his reduction of the second FNDA’s penalty from termination to a 45-day suspension. (Remand Decision at 17-18). He concluded that the unfair practice charge should be “SUSTAINED in part as to the harshness of the penalty assessed, but IT IS ORDERED that the rest of the Complaint seeking to have the no recording policy set aside is DISMISSED.” (Remand Decision at 18-19). In reaching his conclusion, the ALJ recognized a “lack of trust” between Y.M. and her co-workers and supervisors, but declined to specifically determine “whether or not that created sufficient justification to violate the recording policy.” (Remand Decision at 17). ¶

On November 4, 2024, Local 68 filed exceptions to the ALJ’s Remand Decision. On November 11, the Township filed its response to Local 68's exceptions and reincorporated its exceptions to the ALJ’s Initial Decision. ¶

Summary of Facts ¶

Y.M. began working for the Township’s municipal court in 2016 as a Municipal Clerk and was promoted to Assistant Violations Clerk. (Remand Decision at 4; 5T58). Y.M. was a Local 68 union organizer and shop steward. (5T60-62). Y.M.’s supervisors, Court Administrator Santos and Chief Judge Benitez, described her as a good employee who at times had difficulty getting along with coworkers. (Remand Decision at 8). In 2018, Y.M. filed a hostile work environment complaint with former personnel director and current Assistant Township Administrator Duva concerning issues with coworkers such as improper language which led to a staff meeting to discuss professionalism and review workplace conduct policies. Id.; 4T26-36; 5T63-68. ¶

In 2018, one of Y.M.’s coworkers, Washington, filed an unsuccessful grievance against the Township. Y.M. was the shop steward and subsequently began to experience problems with Washington. (5T72-73; R-2). In 2019, some of Y.M.’s coworkers, including Washington, complained to their supervisors about Y.M.’s workplace conduct. Id. Judge Benitez issued Y.M. a written warning on September 4, 2019 concerning correcting coworkers. Id.; 4T39-40; 5T34-36. On September 26, 2019, Y.M. filed a grievance challenging the written warning, which the Township denied. (4T42; 5T77-79). ¶

In June 2021, Washington filed a harassment complaint against Y.M. alleging negative workplace interactions with her. (Remand Decision at 9). On September 24, 2021, Y.M. walked past Washington’s desk while putting a knife away that had been left out on a table. (Remand Decision at 9-10). While Washington claimed that Y.M. made a threatening comment to her while holding the knife, the video of the incident only shows Y.M. speaking to another coworker. (2T74-83). Y.M. testified that she did not speak to Washington at all while putting the knife away, but said something to the other coworker about how the large knife had been left on the table pointing out and could be considered a weapon. (5T113-118; R-2). Santos testified that Washington sometimes does not hear everything correctly and that “sometimes she’ll hear what she wants to hear.” (3T156-158). ¶

On June 29, 2021, a person approached the clerk’s window while Y.M. was there to pay a summons for parking his vehicle in front of her driveway. (Remand Decision at 9). Upon realizing the summons involved her, she called a coworker over to handle the transaction. Id. After some of Y.M.’s coworkers claimed she did not step away from the window quickly enough, the Township issued her a two-day suspension on September 21, 2021. Id. ¶

On October 6, 2021, the Township issued Y.M. a PNDA (90-day unpaid suspension) based on: 1) the “conflict of interest” incident at the summons window on June 29, 2021 for which she had already been disciplined; 2) her alleged treatment of coworkers “which adversely affects the work environment” ; and 3) her alleged comment towards Washington on September 24, 2021 while walking past her with a knife. (R-1). The charges were incompetency, insubordination, conduct unbecoming, and other sufficient cause. (R-1). The Township’s hearing officer found many of the allegations were substantiated and sustained the suspension. (R-2). On December 10, 2021, the Township converted the PNDA to a FNDA for a 90-day suspension without pay. ¶

During the disciplinary hearing, Y.M. disclosed that she made an audio recording of the meeting with Santos and Washington regarding the knife incident and of a meeting with Santos regarding other complaints against her. (Remand Decision at 10- 11; R-2; R-6; 5T107-112; 5T119-120). Y.M. felt compelled to record certain conversations to protect herself in case of discipline, because she felt she was being targeted and did not trust her coworkers. (Remand Decision at 6, 10, 15; R-2; R-6). Y.M. did not know that her recordings violated the Township’s policy. Id. The recordings include Washington describing Y.M.’s knife comment as “a general comment that can be taken in many ways” and Santos telling Y.M. that she thought many of the complaints against her were petty and that she would “deny [she] had this conversation with [Y.M.]. (3T117-118; 3T156-161). Although the recording of Santos captured a license plate number, the ALJ found “[t]here is no indication that sensitive information was shared with third parties.” (Remand Decision at 15; 3T119). Y.M. provided Local 68 with her audio recording and Local 68 submitted them as evidence at the hearing. (5T120; R-2). ¶

On April 1, 2022, the Township issued Y.M. a PNDA for her removal for violating the policy. The PNDA alleged: ¶

During the hearing on October 28, 2021, [Y.M.] disclosed that she records interactions while at work. She subsequently, via her union representative, provided two such recordings. ¶

[R-4.] ¶

Santos testified that once the office heard about Y.M.’s recordings, it led to distrust and less open conversation in the workplace. (3T119-121). Following an April 25, 2022, departmental hearing, the Township issued Y.M. a FNDA on June 6, 2022. Id. The FNDA terminated Y.M., effective June 1, 2022. Id.2/ ¶

The Township’s policy is contained within its “E-Mail, Voice Mail and Internet Usage Policy.” (R-15). The section prohibiting recordings provides: ¶

Except in emergency situations or as part of their officially assigned or regular permitted duties, employees are prohibited from taking any photographs, pictures, digital images, or audio recordings of any crime scenes, traffic crashes, arrestees, detainees, people, or job related incident or occurrence with any personal analog or digital device, camera, imaging device, audio recorder or cellular telephone. This section also applies in off duty scenarios regarding any law enforcement related activities. Any photographs, images, or recordings taken with any personal device pursuant to or in violation of this section are considered evidence and are subject to applicable laws, code, guideline or directive concerning storage, release and disposal. Employees who have recorded any photographs, images or recordings with any personal device shall notify their supervisor as soon as practical. For the purposes of this section, an “emergency situation” involves a sudden and unforeseen combination of circumstances or the resulting state that calls for immediate action, assistance or relief, and may include accidents, crimes and flight from accidents or crimes. ¶

[R-15.] ¶

The policy provides exceptions only for “emergency situations or as part of their officially assigned or regular permitted duties.” The employee handbook “General Personnel Policy” states that in the event any of the handbook rules conflict with any state or federal law or CNA provision, “the conditions of that contract or law shall prevail.” (R-14). ¶

The Township incorporated the policy into its employee handbook in January 2021. Local 68 has not sought to negotiate over the policy or challenge it. (Remand Decision at 10). Duva testified that the policy has been previously enforced. However, the ALJ sustained the Township’s objection to any further questions regarding previous enforcement. (4T50-4T51). ¶

Y.M. timely appealed both of her FNDAs to the CSC. (Remand Decision at 3). On April 25, 2022, Local 68 filed an unfair practice charge (amended on May 6 and June 3) with PERC alleging that the Township violated N.J.S.A. 34:13A-5.4a(1) and 5.4a(3) of the Act when it terminated Y.M. for submitting recordings of workplace interactions during her disciplinary hearing for the first PNDA. The charge was timely filed within six months of the Township’s April 1, 2022 PNDA enforcing the policy against Y.M. (Remand Decision at 11). The CSC appeals and unfair practice case were consolidated by order of the ALJ, who determined that PERC has the predominant interest. 50 NJPER at 434-35. The ALJ held hearings on the consolidated CSC and PERC matters on March 27, April 18 and 24, May 23, and June 9, 2023. Id. ¶

On March 7, 2024, the ALJ issued his Initial Decision sustaining the first FNDA, modifying the second FNDA, and dismissing the unfair practice charge. Both parties filed exceptions with the Commission to the ALJ’s Initial Decision. On April 25, PERC remanded the decision to the ALJ to evaluate whether the Township’s enforcement of its policy against Y.M. violated the Act. On October 25, the ALJ issued his remand decision finding that the Township had a legitimate business justification for the policy in general, but declining to decide whether Y.M. was justified in violating the policy under the circumstances. He nonetheless partially sustained the unfair practice charge by reducing the second FNDA’s penalty from termination to a 45-day suspension. On November 4, Local 68 filed exceptions to the ALJ’s Remand Decision. On November 11, the Township filed its response. ¶

Analysis ¶

I. Did the Township’s discipline of Y.M. for recording the conversations constitute a violation of N.J.S.A. 34:13A-5.4a(1)? ¶

“An employer violates subsection 5.4a(1) if it engages in activities which tend to interfere with, restrain or coerce an employee in the exercise of rights guaranteed by the Act, provided the actions taken lack a legitimate and substantial business justification.” Mine Hill Tp., P.E.R.C. No. 86-145, 12 NJPER (¶17197 1986). For a 5.4a(1) violation to be found, proof of actual interference, restraint, coercion, intimidation, or motive is unnecessary; the tendency to interfere is sufficient. See Trenton Bd. of Ed., P.E.R.C. No. 2023-45, 49 NJPER 530 (¶126 2023); and Commercial Tp. Bd. of Ed., P.E.R.C. No. 83-25, 8 NJPER 550, 552 (¶13253 1982), aff’d (App. Div. 1983). “The test for analyzing a section 5.4(a)(1) charge is objective[;] . . . neither the employee nor the union need prove a motive or intent to coerce or interfere.” Lakehurst Bd. of Ed. (App. Div. 2005). “In determining initially whether particular actions tend to interfere with, restrain or coerce a reasonable employee in the exercise of rights protected under the Act, we will consider the totality of evidence proffered during the course of a hearing and the competing interests of the public employer and the employee organization and/or affected individuals.” Cape May City Bd. of Ed., P.E.R.C. No. 80-37, 5 NJPER 411 (¶10214 1979), aff’d (App. Div. 1980). “The charging party must prove that the tendency to interfere outweighs the business justification.” Lakehurst, supra. ¶

a. Were Y.M.’s workplace recordings protected activity? ¶

Protected activity under the Act is conduct in connection with collective negotiations, grievance processing, contract interpretation or administration, or other related activity on behalf of a union or individual. N.J. Turnpike Auth., P.E.R.C. No. 2022-38, 48 NJPER 393 (¶90 2022). “We find that individual employee conduct, whether in the nature of complaints, arguments, objections, letters or other similar activity relating to enforcing a collective negotiations agreement or existing working conditions of employees in a recognized or certified unit, constitute protected activities under our Act.” North Brunswick Tp. Bd. of Ed., P.E.R.C. No. 79-14, 4 NJPER 451 (¶4205 1978), aff’d (App. Div. 1979) (secretary’s individual complaints about change in her shift hours, an existing working condition not in the CNA, were protected activities even before grievance). ¶

Following North Brunswick, the Commission and courts have continued to find that protected activity may include individual conduct related to preserving or protesting working conditions. See, e.g., Wall Tp. Bd. of Ed., P.E.R.C. No. 2010-24, 35 NJPER 373 (¶126 2009), aff’d (App. Div. 2011) (employee’s individual challenge to her evaluation was protected activity); Middletown Tp. Bd. of Ed., P.E.R.C. No. 86-142, 12 NJPER 521 (¶17194 1986), aff’d (App. Div. 1987) (employee’s request for personal leave extension was protected activity); State of New Jersey (Public Defender), P.E.R.C. No. 86-67, 12 NJPER 12 (¶17003 1985), aff’d (App. Div. 1987) (unlike her general office organization complaints, employee’s individual complaints about office party, e.g., whether leave time had to be used if not attending, were protected activity); and State of New Jersey, P.E.R.C. No. 2006-11, 31 NJPER 276 (¶109 2005). ¶

Local 68 asserts that Y.M. was engaged in protected activity when she made her recordings, as they concerned allegations against her related to workplace incidents and were utilized by Local 68 as evidence during her departmental disciplinary hearing following the first PNDA. The Township asserts that Y.M. did not engage in protected activity under the Act when she made workplace recordings because they were not related to enforcing the contract, but were made for purely selfish reasons. ¶

In North Hudson Reg. Fire and Rescue, P.E.R.C. No. 2010-3, 35 NJPER 279 (¶96 2009), the Commission restrained binding arbitration of a grievance challenging the employer’s implementation of a work rule prohibiting employees from using recording devices while on duty. The Commission recognized both parties’ legitimate interests surrounding the issue of secret workplace recordings, finding: ¶

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. . . . [but] [w]e [also] 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. ¶

[35 NJPER at 380; emphasis added.] ¶

Ultimately, because the employer had identified “a particular case where surreptitious recording adversely affected department operations” whereas the union “identified only speculative interests,” the Commission found that the employer’s interests outweighed the employees’ interests. Id.3/ ¶

Here, by contrast, Local 68 has identified Y.M.’s legitimate interest in recording coworker or supervisor statements for evidentiary support. Although Y.M.’s recordings began as individual conduct before she provided them to Local 68 to use during her disciplinary hearing, protected activity under the Act includes individual conduct related to preserving or protesting working conditions. See, e.g., North Brunswick, supra; Wall, supra; State of New Jersey, P.E.R.C. No. 2006-11, supra. Local 68's use of Y.M.’s workplace recordings as evidence for her departmental disciplinary hearing is protected activity because it relates to preserving the working conditions of Local 68 employees to defend themselves from disciplinary charges and to protest the allegedly unjust and arbitrary imposition of discipline. Furthermore, Y.M.’s right to defend herself against disciplinary charges is rooted in the Civil Service laws and regulations, as well as the Township’s discipline, termination, and complaint policies contained in the employee handbook. ¶

Pursuant to the Civil Service laws, Local 68 unit employees who are issued a PNDA for major discipline have a right to a departmental hearing, a right to union representation, and a right to present evidence and witnesses. N.J.S.A. 11A:2-13, -18; N.J.A.C. 4A:2-2.5, -2.6. The Township’s employee handbook incorporates these rights in its General Personnel Policy savings clause, noting that “the terms and conditions” of the Civil Service Act, the CNA, and any other applicable laws shall prevail.4/ (R-14). An employee’s rights under the Civil Service disciplinary procedures are also rights incorporated into the Employer-Employee Relations Act. See N.J.S.A. 34:13A-5.3.5/ ¶

The Township’s “Employee Discipline Policy” provides, in pertinent part: “Employees who object to the terms or conditions of the discipline are entitled to a hearing under the applicable grievance procedure (and Civil Service procedure).” (R-14). The “Employee Termination Policy” similarly provides that all discharges “will be in accordance with . . . the New Jersey Civil Service Act” and any applicable CNAs. (R-14). Finally, the “Employee Complaint Policy” sets forth a right to “Provide information to, or testify before any public body conducting an investigation, hearing, . . .” (R-14). ¶

As the Township’s employee handbook establishes terms and conditions of employment consistent with the Civil Service laws, provides a right to a hearing under Civil Service procedure for employees who object to discipline, and grants a right to provide information at a hearing, we find that Y.M.’s use of workplace recordings as evidence during her departmental disciplinary hearing was related to preserving these rights. In sum, Local 68 sought to defend Y.M. at the disciplinary hearing through submission of her audio recordings as evidence concerning the allegations made by her coworkers and supervisors. Under these circumstances, we find that Y.M.’s workplace recordings constituted protected activity under the Act. ¶

b. Did the Township’s policy lack a legitimate and substantial business justification? ¶

Local 68 asserts that the Township’s prohibition on workplace recordings violates the Act because, without exceptions for protected activity, it reasonably tends to chill employees in the exercise of their protected rights. The Township asserts that the policy serves a legitimate business justification both because of the sensitive information of third parties that may be captured and because of coworkers feeling their privacy is being violated. ¶

In North Hudson, supra, while the Commission agreed with the union that employees have a legitimate interest in recording hostile statements of coworkers or supervisors, we also agreed 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.” 35 NJPER at 380. In that case we restrained binding arbitration of the union’s challenge to the new no recording work rule based on a record that included “specific concerns” by the employer concerning surreptitious recording but only “speculative interests” by the union. ¶

Here, we find that the Township’s no recording policy seeks to advance legitimate managerial interests in protecting employees’ ability to communicate freely with each other without fear that their recorded statements could be used against them, as well as its legitimate interests in preventing potentially sensitive third party information from being recorded and distributed to unauthorized parties. However, we note that although the policy does not contain any specific exceptions for protected activity, the employee handbook includes a general savings clause recognizing that any conflicting laws or CNA provisions will prevail over the handbook’s rules. (R-14). Thus, the employee handbook incorporates the Act’s prohibition on employer actions that tend to interfere with employees’ engagement in protected activity. Accordingly, we find that the Township’s policy generally serves a legitimate business interest and does not, on its face, tend to interfere with, coerce, or restrain employees in the exercise of rights guaranteed by the Act. ¶

c. Was the Township’s policy unlawfully applied under these circumstances because it had a tendency to interfere with protected activity under the Act? ¶

The Township specifically applied the policy to discipline Y.M. after Local 68 utilized her recordings as part of her defense during her first internal disciplinary hearing.6/ The Township argues it was justified in disciplining Y.M. for violating the policy because word of Y.M.’s surreptitious recordings has caused distrust among court staff. The Township also asserts that the policy should be enforced here based on privacy concerns because one of Y.M.’s recordings captured a license plate number being read. Local 68 asserts that the application of the policy to Y.M. - seeking to terminate her for using recordings with her supervisor about workplace incidents in a disciplinary hearing concerning those incidents - violated subsection 5.4a(1) of the Act because it has the tendency to interfere with her protected activity. ¶

We must determine whether the Township has demonstrated a legitimate and substantial business justification for enforcing the policy against Y.M. under these circumstances. First, as to the Township’s privacy concerns, the ALJ found no evidence that the recordings have been shared with any third parties. Any information inadvertently captured in a recording amongst Y.M. and her coworkers is information that they already had access to due to their job responsibilities. The recordings were focused on particular conversations between Y.M., her supervisor, and a coworker concerning recent workplace incidents; they were not general recordings of interactions with the public or workplace discussions unrelated to the allegations against Y.M. There is no evidence that these recordings have been utilized for any purpose other than preserving and submitting evidence during Y.M.’s disciplinary hearing. ¶

Next, we find that even if Y.M.’s recordings created a less trusting work environment for some of her colleagues, such concerns do not, under these specific circumstances, override Y.M.’s and Local 68's right to engage in protected activity to defend her against disciplinary charges. The record shows, and the ALJ found, that Y.M. and some of her coworkers were already distrustful of each other based on complaints and allegations on both sides over several years.7/ Due to this work atmosphere, Y.M. felt like a target and, sensing that “none of her co-workers would back her up,” she “felt compelled to record some conversations to protect herself should she be faced with discipline.” (Remand Decision at 15). ¶

Y.M.’s fears were realized when she was issued a PNDA primarily concerning the allegations and incidents discussed in the recordings. Pursuant to Civil Service law and the Township’s disciplinary, termination, and complaint policies, Y.M. had a right to a hearing where her union could submit evidence on her behalf. In this scenario, it was not unreasonable for Y.M. to engage in the protected activity of making these recordings and presenting them to her union as part of her defense. Therefore, we do not find that the Township had a legitimate and substantial business justification for applying the policy to Y.M. under these circumstances. See, e.g., City of Linden, P.E.R.C. No. 2019-39, 45 NJPER 363 (¶95 2019) (Commission found that issuance of PNDA and discipline against employee for violating dress code following protected activity violated 5.4a(1), and that such “strict and arbitrary enforcement of workplace rules” tended to interfere with employees’ exercise of rights under the Act). ¶

Although we decline to specifically adopt the National Labor Relations Board’s [NLRB] standards for deciding similar cases, our conclusion that a facially lawful “no recording” policy may still be implemented unlawfully if it tends to interfere with protected rights is consistent with the NLRB cases cited by the parties.8/ In Whole Foods Market, Inc., 363 NLRB No. 87, *11 (2015), enforced, 691 Fed. Appx. 49 (2d Cir. 2017), the NLRB found that protected conduct may include “audio or video recording in the workplace” used for “documenting inconsistent application of employer rules, or recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions.” In AT&T Mobility, LLC, 370 NLRB No. 121 (2021), the NLRB found that secretly recording a disciplinary meeting with a supervisor and coworker “and preserving evidence for use in a possible grievance” was protected activity and that the employer’s application of its generally lawful recording policy was unlawful because it had a tendency to interfere with free exercise of employee rights. Accord Starbucks Corp., 372 NLRB No. 50 (2023), aff’d in part, remedy vacated in part (3d. Cir. 2024) (although secret recordings violated state law, employer violated the NLRA by enforcing no recording policy against employees for “recording activity [that] sought to document their conversations with management about terms and conditions of employment, including potential discipline, and to preserve evidence for any future employment-related actions that may arise.” ) ¶

Based on the above, we find that the Township’s imposition of disciplinary charges against Y.M. (termination reduced to a 45-day unpaid suspension by the ALJ) for violating the no recording policy was an action that would interfere with, restrain, or coerce an employee in the exercise of rights guaranteed by the Act. We therefore modify the ALJ’s Remand Decision to find that the Township violated N.J.S.A. 34:13A- 5.4a(1). We order the Township to remove the second disciplinary charge and the modified 45-day suspension from Y.M.’s record. This determination does not impact the ALJ’s decision to uphold the initial FNDA and 90-day suspension, as those disciplinary charges are unrelated to the unfair practice claims. ¶

As we have concluded that the Township’s enforcement of its policy against Y.M. in response to Local 68's use of her recordings during a disciplinary hearing independently violated subsection 5.4a(1) of the Act, it is unnecessary for us to further analyze Local 68's unfair practice allegations under subsection 5.4a(3) of the Act. ¶

As our analysis only concerns the parties’ exceptions as within the Commission’s exclusive unfair practice jurisdiction, the parties’ remaining exceptions concerning the charges included in the first FNDA and the 90-day unpaid suspension sustained by the ALJ are for the CSC to review pursuant to its jurisdiction and expertise. Pursuant to the Order of Consolidation, this case shall proceed to the Civil Service Commission. ¶

OrderORDER ¶

The ALJ’s October 25, 2024 Initial Decision on Remand is modified to find that the Township of Bloomfield’s application of its no-recording policy to Y.M. in response to Local 68's use of her recordings during a disciplinary hearing independently violated subsection 5.4a(1) of the Act. ¶

1. The Township is ordered to cease and desist from: interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed to them by the Act, particularly by applying its no-recording policy in a manner that disciplines employees engaged in protected activity. ¶

2. The Township is ordered to take this affirmative action: rescind the second FNDA imposed against Y.M. for violation of the no-recording policy, thereby rescinding the modified 45-day suspension and providing back pay and pension credit accordingly. ¶

3. The remaining aspects of the case are transferred to the Civil Service Commission. ¶

BY ORDER OF THE COMMISSION ¶

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

ISSUED: January 30, 2025 ¶

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. ...[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.” ¶

2/ The Township also used Y.M’s recording to discipline Santos with a 10-day suspension for inappropriate statements she made about other employees. (3T117-118; 3T170; 5T33-34). ¶

3/ Additionally, the Commission did not foreclose the possibility of the parties negotiating over aspects of the policy, stating “we encourage the parties to explore the scope of the exceptions to see if any Association concerns can be addressed.” 35 NJPER at 380. ¶

4/ We note that neither party submitted a copy of the most recent CNA between the Township and Local 68. Although public employers are required by N.J.S.A. 34:13A-8.2 to “file with the commission a copy of any contracts it has negotiated with public employee representatives following consummation of negotiations,” the most recent CNA on file with the Commission is the 2002-2005 CNA between the Township and OPEIU Local 32, who previously represented this unit. That CNA contains a “Management Rights” clause providing that the employer has the right to take any disciplinary action against employees for “just cause.” ¶

5/ “Nothing herein shall be construed to deny to any individual employee his rights under Civil Service laws or regulations.” and “the [disciplinary] procedures agreed to by the parties may not replace or be inconsistent with any alternate statutory appeal procedure nor may they provide for binding arbitration of disputes involving the discipline of employees with statutory protection under tenure or civil service laws, . . .” ¶

6/ As the Township did not present any evidence regarding the extent to which it has previously sought to enforce the policy and under what circumstances, we have no basis for finding either that the Township has consistently enforced the policy in the manner it has against Y.M. or for inferring a hostile motive based on disparate treatment of Y.M.’s violation of the policy. Regardless, the tendency to interfere with protected rights is sufficient for a 5.4a(1) violation to be found without proof of actual interference or motivation. See Trenton Bd. of Ed., supra. ¶

7/ “It was obvious throughout the proceedings that there was a lack of trust between [Y.M.], her co-workers and her supervisors, including but not limited to the Township Administrator.” (Remand Decision at 17). ¶

8/ NLRB and federal court decisions interpreting the NLRA and LMRA in the private sector may be used as a guide in interpreting the unfair practice and representation provision of our Act. Lullo v. International Ass’n of Firefighters, 55 N.J. 409, 423-424 (1970); Galloway Twp. Ass’n of Educ. Secs., 78 N.J. 1, 9 (1978). ¶