NEW JERSEY TRANSIT BUS OPERATIONS, INC v. ATU NEW JERSEY STATE COUNCIL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY TRANSIT BUS

OPERATIONS, INC.,

Petitioner-Appellant,

v.

ATU NEW JERSEY STATE COUNCIL

and ATU LOCAL 822,

Respondents-Respondents.

_________________________________

September 4, 2014

Argued December 18, 2013 Decided

Before Judges Grall, Waugh and Nugent.

On appeal from the Public Employment Relations Commission, Docket No. SN-2012-036.

Michael S. Rubin, Deputy Attorney General, argued the cause for appellant (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Rubin, on the brief).

Paul A. Montalbano argued the cause for respondents (Cohen, Leder, Montalbano & Grossman, LLC, attorneys; Mr. Montalbano,

on the brief).

Christine Lucarelli, Deputy General Counsel, argued the cause for the Public Employment Relations Commission (Martin R. Pachman, General Counsel, attorney; Ms. Lucarelli, on the statement in lieu of brief).

PER CURIAM

New Jersey Transit Bus Operations, Inc. (NJTBO) appeals

a decision of the New Jersey Public Employment Relations Commission (PERC) denying its scope of negotiations petition. Through that petition, the NJTBO sought to restrain binding arbitration of a grievance involving NJTBO's discharge of an employee for taking money from the fare box of a NJTBO bus. The evidence supporting the disciplinary charge includes admissions the employee made when questioned by officers of the New Jersey Transit Police Department (NJTPD). The interview was conducted in an office at the NJTBO facility where the alleged theft occurred the facility where the employee did work related to the maintenance of buses. In the grievance, the union contended that "the evidence obtained during the [NJTPD's] investigatory interview should be suppressed because the employee was denied union representation" during the interview.

The United States Supreme Court first recognized and defined the right to union representation during an employer's investigation of misconduct as derivative of the federal statutory right of employees in the private sector "to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C.A. 157; see NLRB v. J. Weingarten, Inc., 420 U.S. 251, 95 S. Ct. 959, 43 L. Ed. 2d 171 (1975); see also In the Matter of Univ. of Med. & Dentistry of N.J. (UMDNJ), 144 N.J. 511, 525-26 (1996). It is worth noting that the employer's investigation in Weingarten also involved an allegation of employee theft.

In In the Matter of University of Medicine and Dentistry of New Jersey, the New Jersey Supreme Court recognized the similarity between the federal statute and N.J.S.A. 34:13A-5.3, which requires protection of public employees' "right, freely and without fear of penalty or reprisal, to form, join and assist any employee organization." 144 N.J. at 526-29. In addition, the Court determined that the Weingarten right was consistent with its own determination that "'[t]he principle of collectivity . . . in public employment labor relations is at the heart of'" the New Jersey Employer Employee Relations Act, N.J.S.A. 34:13A-1 to -43. UMDNJ, supra, 144 N.J. at 528 (quoting Red Bank Reg'l Educ. Ass'n v. Red Bank Reg'l High Sch. Bd. of Educ., 78 N.J. 122, 138 (1978)); see id. at 527-28 (discussing other public policy justifications favoring adoption of the "Weingarten rule," including the impact of the "atmosphere of isolation" on employees' ability to defend themselves and a failure to appreciate their ability to "exonerate themselves" or point out "mitigating circumstances"). On that reasoning, the Court approved of PERC's adoption of the Weingarten right. Id. at 528-29.

The "contours" of the Weingarten right are as follows:

First, the right inheres in [the] guarantee of the right of employees to act in concert for mutual aid and protection. . . .

Second, the right arises only in situations where the employee requests

representation. . . .

Third, the employee's right to request representation as a condition of participation in an interview is limited to situations where the employee reasonably believes the investigation will result in disciplinary action. . . .

Fourth, exercise of the right may not interfere with legitimate employer prerogatives. . . .

Fifth, the employer has no duty to bargain with any union representative who may be permitted to attend the investigatory interview. . . . "The representative is present to assist the employee, and may attempt to clarify the facts or suggest other employees who may have knowledge of them. The employer, however, is free to insist that he is only interested, at that time, in hearing the employee's own account of the matter under investigation."

[144 N.J. at 526 (quoting Weingarten, supra, 420 U.S. at 256-60, 95 S. Ct. at 963-65, 43 L. Ed. 2d at 177-79 (citation omitted and all but initial alterations in the original).]

NJTBO filed its scope of negotiations petition following a binding arbitration, which for reasons not clear on this record or relevant to the issues presented, the arbitrator did not decide. Prior to a second arbitration, NJTBO asked PERC to determine that the union could not rely upon Weingarten to exclude the employee's admission made to officers of the NJTPD when they interviewed him. It asserted that injecting a union representative in a criminal investigation conducted by a "full-fledged police force" would interfere with the NJTPD's law enforcement mission.

The Legislature established the NJTPD "in the New Jersey Transit Corporation." N.J.S.A. 27:25-15.1. The NJTPD have "police and security responsibilities over all locations and services owned, operated, or managed by the corporation and its subsidiaries." Ibid. And the "executive director of the New Jersey Transit Corporation [(NJT)], through the chief of police of the [NJTPD], shall have the power and authority to appoint and employ such number of transit police officers as he deems necessary to act as transit police officers of the corporation and to administer to the transit police officers an oath or affirmation faithfully to perform the duties of their respective positions or offices." Ibid. While "[t]he transit police officers so appointed have general authority, without limitation, to exercise police powers and duties, as provided by law for police officers and law enforcement officers, in all criminal and traffic matters at all times throughout the State," they also have the authority "to enforce such rules and regulations as the corporation shall adopt and deem appropriate." Ibid. Thus, these officers have broad law enforcement authorities to effectuate their primary responsibilities in connection with and under the control of the NJT, which encompasses the general law and the NJT's rules and regulations.

PERC's inquiry on a scope of negotiations petition is quite narrow. The merits of the union's claimed violation of the Weingarten right is not in issue, because that is a matter for the arbitrator to decide, if the Commission determines that the question is one that may be arbitrated. Ridgefield Park Educ. Ass'n v. Ridgefield Park Bd. of Educ., 78 N.J. 144, 154 (1978). On a scope of negotiations petition, PERC addresses a single issue, whether the subject matter in dispute here the Weingarten right is within the scope of collective negotiations. Ibid.

In a dispute about negotiability between the NJTBO and a union representing its employees, the "standard applicable to other public employees does not apply." In the Matter of N.J. Transit Bus Operations, Inc. (In the Matter of NJTBO), 125 N.J. 41, 45, 60 (1991). "[T]hat standard calls for negotiation on any subject that affects the employees' working conditions as long as such negotiations do not substantially interfere with the goals of NJT, with its 'statutory mission.'" Ibid. Thus, to prevail on a scope of negotiations petition, the NJTBO must demonstrate that negotiation of the subject presents a "realistic possibility of preventing government from carrying out its task, from accomplishing its goals, from implementing its mission," meaning its "statutory mission." Ibid. And, as the Supreme Court has determined, that mission "is assuring effective and efficient mass transit in New Jersey." Ibid.

Applying that standard, PERC rejected NJBTO's claim that enforcement of Weingarten rights in the context of an investigation conducted by the NJTPD would interfere with the NJTPD's mission. PERC focused, as In the Matter of NJTBO requires, on the mission of the NJT, of which the NJTBO is a part. See L. 1979, c. 150 (N.J.S.A. 27:25-1 to -24 (creating the NJT)). As the Court explained, under this standard PERC does and must look "to the actual consequences of allowing negotiations [on the subject at hand] on the ability of NJT to operate and manage mass transit efficiently and effectively in New Jersey." In the Matter of NJTBO, supra, 125 N.J. at 60.

Pursuant to the Supreme Court's decision in In the Matter of NJTBO, the questions for PERC are as follows:

If negotiations might lead to a resolution that would substantially impair [the] ability [to operate and manage mass transit efficiently], negotiations are not permitted. But, if there is no such likelihood, they are mandatory. It is the effect on the ability to operate mass transit that is the touchstone of the test, rather than someone's notion of what government generally should be allowed to unilaterally determine and what it should not.

[125 N.J. at 60.]

Before PERC, the NJTBO contended that compliance with Weingarten rights will undermine NJT's mission. Pointing to nothing specific about the NJTPD's investigations of employee theft that are unique, the NJTBO claimed that the right to union representation is inapplicable for criminal investigations conducted by the NJTPD, and that requiring the NJTPD to provide union representation during criminal investigations interferes with NJT's statutory operations.

PERC gave the following reasons for rejecting that claim.

Again, the only inquiry we make in resolving this scope determination is whether allowing the employee to have union representation would have prevented NJT from fulfilling its statutory mission to provide a coherent public transportation system in the most efficient and effective manner. This case involved alleged theft of a total of $240.00 from a broken fare box. The nature of the investigation did not touch upon or interfere in an appreciable way with NJT's statutory mission. University of Medicine and Dentistry of New Jersey, 144 N.J. at 534 (finding that while a Weingarten right was triggered when an intern requested union representation at an investigatory interview that concerned alleged academic and medical misjudgments, that right did not and could not frustrate the University's purpose to make appropriate academic and medical decisions.

We reject NJT's argument that Weingarten rights never apply to interviews conducted by NJTPD because to allow such representation would frustrate the effectiveness of criminal interviews. While NJT asserts that NJTPD is akin to a municipal or State police force, NJTPD's jurisdiction is limited to "police and security responsibilities over all locations and services owned, operated, or managed by the [NJT] corporation and its subsidiaries." N.J.S.A. 27:25-15.1(a). The nature of the investigatory interview may have been criminal, but it resulted in an administrative termination of the employee's job. An investigatory interview conducted by the police arm of a public employer, as opposed to the public employer itself, is not, standing alone, a ground to render Weingarten protections inapplicable. In re Carroll, 339 N.J. Super. 429 (App. Div. 2001) (even though sheriff's officer was granted use immunity during an internal criminal investigation interview, he should have been allowed to consult with attorney and union representative); see also Dep't of Human Services, P.E.R.C. No. 89-16, 14 NJPER 563 ( 19236 1998) (finding a violation of the New Jersey Employer-Employee Relations Act when an employee interviewed by Human Services police was denied union representation where the employee had a reasonable basis to believe the information gathered at the interview was available for purposes of administrative discipline); see also U.S. Postal Service, 241 N.L.R.B. 141, 100 LRRM 1520 (1979) (finding that an employee interviewed by Postal Service inspectors and ultimately disciplined based on evidence obtained as a result of the criminal investigation was entitled to union representation).

On appeal, the NJTBO contends that PERC's decision mandating arbitration of Weingarten claims undermines the NJTPD's investigation of employee misconduct that is criminal. While we recognize that rampant employee theft of bus fares could impact NJT's mission, that question is besides the inquiry, which is whether affording Weingarten rights in the investigation of theft will have that effect. Given the option employers have to limit or terminate the interview that are part of the Weingarten right's contours, NJTBO's concern about a union representative's disclosure of "confidential information" is too speculative to establish interference with the NJTBO's mission.

The NJTBO further contends that the statutory law enforcement authority of officers of the NJTPD is broader than the authority of officers of the police force of the Department of Human Affairs and calls for a different application of Weingarten. But the fact that officers of the NJTPD have police powers that are general and statewide is immaterial. The question material to the operation of Weingarten is whether "the employee reasonably believes the investigation will result in disciplinary action." Weingarten, supra, 420 U.S. at 257. The material fact is that the primary responsibility of officers of the NJTPD and officers of the police force for the Department of Human Affairs is the role they play for their respective employers.

Having considered all of the arguments presented by the NJTBO that have sufficient merit to warrant some discussion in a written opinion and declining to address the remaining arguments, which do not, R. 2:11-3(e)(1)(E), we affirm substantially for the reasons stated in the PERC decision.

Affirmed.