IN THE MATTER OF THE CITY OF GARFIELD AND GARFIELD PBA LOCAL NO. 46

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE

CITY OF GARFIELD AND

GARFIELD PBA LOCAL

NO. 46.

________________________________________________________________

ArguedJuly 1, 2014 Decided November 17, 2014

Before Judges Espinosa and Kennedy.

On appeal from the New Jersey Public Employment Relations Commission, Docket No. CO-2011-397.

Arthur R. Thibault argued the cause for appellant City of Garfield (Apruzzese, McDermott, Mastro & Murphy, P.C., attorneys; Mr. Thibault, of counsel; Jonathan F. Cohen, on the briefs).

Marcia J. Tapia argued the cause for respondent Garfield PBA Local 46 (Loccke Correia Limsky & Bukosky, attorneys; Ms. Tapia, of counsel and on the brief).

Martin R. Pachman, General Counsel, attorney for respondent New Jersey Public Employment Relations Commission (Mary E. Hennessy-Shotter, Deputy General Counsel, on the brief).

The opinion of the court was delivered by

ESPINOSA, J.A.D.

Appellant City of Garfield (the City) appeals from the decision of the Public Employment Relations Commission (PERC) that it violated subsection 5.4(a)(1) of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -43 (the Act). For the reasons that follow, we affirm.

The City, a public employer, and the Garfield PBA, Local No. 46 (PBA), an employee representative within the meaning of the Act, are parties to a collective negotiations agreement in effect at the relevant time. The City does not take issue with the factual findings of the Hearing Examiner, which we summarize here.

The incident at issue occurred on March 24, 2011, during a meeting held in the office of the Chief of Police, Kevin Amos, at the request of PBA representatives regarding a new policy instituted by the Chief to respond to calls when an officer needs assistance. Two management representatives, Chief Amos and Captain Raymond Kovach, and two PBA representatives, Everett Garnto, Jr., President of the PBA, and Pedro Gongora, Vice President of the PBA, attended the meeting. Prior to the institution of the new policy, when an officer called for assistance, all available units responded, operating under the theory that an officer's life might be in danger.

On March 14, 2011, a police officer responding to a domestic violence call became involved in a struggle with a suspect. Although the officer did not request backup, the police dispatcher heard the scuffle over the radio and put out a call for all available units to respond. As a result, seven officers responded.

After evaluating this incident, Chief Amos determined that a more directed response was appropriate. Under this approach, the dispatcher should have first asked the officer on the scene if assistance was needed and then determined which officers were closest to the scene. Chief Amos concluded that by using computer and GPS technology, fewer officers could have been dispatched to the scene. He instructed the dispatchers to check computer information on the location of units and do a directed response to the scene.

The police officers were upset by this new policy. They contacted Garnto and Gongora, and expressed their concern that the new policy jeopardized officer safety and that the prior policy should be reinstated. Garnto and Gongora called Chief Amos and requested a meeting to discuss the new policy.

The meeting was held in Chief Amos's office behind closed doors. Citing concerns over officer safety, Garnto expressed disagreement with the new policy and asked that the prior policy be reinstated. Chief Amos responded with his reasons for making the change in policy. Chief Amos and Garnto continued to talk, loudly and excitedly.

The Hearing Examiner found that at a lull in the conversation, Gongora said the following to the Chief "in a calm voice"

Chief, [with] all due respect, I don't think it's the right thing to do. We don't know what we have."

The Hearing Examiner noted that the parties had differing recollections as to what followed and explicitly declined to make a credibility determination to determine which of the versions to accept. It is undisputed, however, that, at some point thereafter, Chief Amos asked Gongora to leave the office. According to Chief Amos, when Gongora did not leave after repeated requests, he got out of his chair, opened the door, and told Gongora he had to leave. Chief Amos testified he told Gongora, "[i]f he enjoyed working here, he'd leave. Or [if] he wanted to continue working here, leave." Gongora then left the office.

Garnto rose to follow Gongora out of the office but remained after Kovach asked him to stay. Garnto told Chief Amos that Gongora had done nothing wrong and that the Chief was wrong in telling Gongora to leave. The meeting continued without resolving the dispatching issue.

The Hearing Examiner found that Garnto requested the meeting to address employee safety, and that "Gongora felt threatened by the Chief's remarks and believed they were in retaliation for his exercise of protected activity." He noted that Garnto characterized Chief Amos's manner toward Gongora to be angry and regarded his remark to him to be threatening. Gongora denied being insubordinate to the Chief. Although Chief Amos considered Gongora to be disrespectful and unproductive, he did not consider him to be insubordinate.

The PBA filed an unfair practice charge against the City, alleging that the City violated subsections 5.4(a)(1), (2), (3), (4), (5), (6) and (7) of the Act. All allegations other than the 5.4(a)(1) charge were dismissed.

N.J.S.A. 34:13A-5.4(a)(1) prohibits public employers, their representatives and agents from "[i]nterfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this [A]ct." The rights provided to public employees by the Act include the following

[P]ublic employees shall have, and shall be protected in the exercise of, the right, freely and without fear of penalty or reprisal, to form, join and assist any employee organization or to refrain from any such activity . . . .

Representatives designated or selected by public employees for the purposes of collective negotiation . . . shall be the exclusive representatives for collective negotiation concerning the terms and conditions of employment of the employees in such unit.

. . . .

In addition, the majority representative and designated representatives of the public employer shall meet at reasonable times and negotiate in good faith with respect to grievances, disciplinary disputes, and other terms and conditions of employment.

. . . .

Grievance and disciplinary review procedures established by agreement between the public employer and the representative organization shall be utilized for any dispute covered by the terms of such agreement.

[N.J.S.A. 34:13A-5.3.]

The Hearing Examiner found that Garnto and Gongora were engaged in a protected activity under the Act when they met with the Chief and Kovach to protest a change in policy that was viewed as jeopardizing officer safety by PBA members. As noted by the Hearing Examiner, the applicable standard provides

[It shall be an] unfair practice for [an] employer to engage in activities which, regardless of [the] absence of direct proof of anti-union bias, 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.

[N.J. Sports & Exposition Auth., P.E.R.C. No. 80-73, 5 NJPER 550, 551 n. 1 ( 10285 1979) (emphasis added).]

In restating the standard for determining a violation of N.J.S.A. 34:13A-5.4(a)(1), PERC stated its intention to conform its standard to that used by the National Labor Relations Board.1

The Hearing Examiner further found that Gongora did not forfeit the protected nature of his activity by his conduct. The Hearing Examiner reasoned that, even if the City's version of Gongora's conduct were accepted, Gongora's alleged refusal to allow the Chief to state his views, his failure to respond to three requests to leave the Chief's office and disrespectful behavior were insufficient to strip him of the protection afforded by the Act, because it "did not indefensibly threaten workplace discipline, order or respect."

The Hearing Examiner found that the Chief violated subsection 5.4(a)(1) in two ways: by asking only Gongora to leave the room and by threatening Gongora's employment. He concluded that these comments constituted an unfair practice "because they have the tendency to interfere with Gongora's right to advocate working conditions concerns on behalf of the PBA." The Hearing Examiner recommended that PERC order the City to cease and desist from interfering with employees' exercise of the rights guaranteed by the Act, and notify the Chief that he may not determine which union representatives may participate in meetings regarding labor-management issues that affect the terms and conditions of employment and may not threaten any PBA representative for exercising protected rights.

The City filed exceptions to the Hearing Examiner's report and recommendations. PERC adopted and incorporated the Hearing's Examiner's findings of fact. PERC also adopted the Hearing Examiner's recommendations, finding that the City violated subsection 5.4(a)(1) when the Chief "asked and then pressured . . . Gongora to leave a labor-management meeting and when Chief Amos threatened Gongora to pressure him to leave the meeting."

In this appeal, the City argues that PERC erred in adopting the Hearing Examiner's report because the Hearing Examiner failed to make necessary credibility findings; that both PERC and the Hearing Examiner applied the incorrect standard in determining what constitutes protected activity under the Act and that an affirmance of PERC's decision would effect a change in the law that should only be applied prospectively.2

The scope of our review in an appeal from a final decision of an administrative agency is limited. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009). This court may not reverse an agency's decision unless: (1) it is arbitrary, capricious, or unreasonable; (2) it violates express or implied legislative policies; (3) it offends the State or Federal Constitution; or (4) the findings on which it is based are not supported by substantial, credible evidence in the record. Univ. Cottage v. N.J. Dep't of Envtl. Prot., 191 N.J. 38, 48 (2007).

We are bound to defer to PERC's findings of fact "when they could reasonably be made considering the proofs as a whole and with due regard to the opportunity of the one who heard the testimony to assess credibility." Klusaritz v. Cape May Cnty., 387 N.J. Super. 305, 313 (App. Div. 2006), certif. denied, 191 N.J. 318 (2007). Strictly legal issues are reviewed without deference; however, where an agency interprets its own enabling legislation, this court must accord substantial deference. See Richardson v. Bd. of Trs., 192 N.J. 189, 196 (2007); Pressler and Verniero, Current N.J. Court Rules, comment 7.2 on R. 2:10-2 (2015).

Although "statutory interpretation is primarily the role of the judiciary and is not an administrative function," Krayniak v. Bd. of Trs., 412 N.J. Super. 232, 237 (App. Div. 2010), we will normally defer to matters that lie within the special competence of an administrative tribunal when reviewing agency decisions. Balagun v. N.J. Dep't of Corrs., 361 N.J. Super. 199, 202 (App. Div. 2003); DiBlasi v. Bd. of Trs., Pub. Emps.' Ret. Sys., 315 N.J. Super. 298, 301-302 (App. Div. 1998). "'Appellate courts must defer to an agency's expertise and superior knowledge of a particular field.'" In re Carter, 191 N.J. 474, 482-83 (2007) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).

In determining whether PERC correctly decided that an unfair labor practice was committed here, we are guided by the test our Supreme Court directed should be applied "when dual motives, both an anti-union motive and a legitimate business motive, are asserted for a public employer's action." Bridgewater, supra, 95 N.J. at 237.

[A]n employee must establish that the protected activity was "a substantial, i.e., a motivating factor" in the employer's disputed action. Once this is accomplished, the burden shifts to the employer to "go forward and establish by a preponderance of the evidence" that the action occurred for legitimate business reasons and not in retaliation for the protected activity. . . . [U]ltimately the conflicting proofs will be for the fact finder to resolve.

[Id. at 244 (quoting In re E. Orange Pub. Library, 180 N.J. Super. 155, 163 (App. Div. 1981)).]

The initial question here is whether Gongora was engaged in a protected activity in the meeting. The City argues that the meeting in the Chief's office was impromptu in nature and should not be construed as implicating protected activity because subsection 5.4(a)(1) usually applies to more formal proceedings such as grievances and negotiations over a new policy within the context of contract negotiations. However, even an impromptu meeting can be the subject of protected activity. See, e.g., City of Asbury Park, P.E.R.C. No. 80-24, 5 NJPER 389 ( 10199 1979) (holding that a union president's angry confrontation with the city manager after running into the manager one evening and trying to arrange a meeting to discuss complaints was a protected activity).

The Hearing Examiner's findings, which are not challenged by the City, show that the meeting was requested by PBA leaders to discuss a change in policy that raised a concern among PBA members regarding officer safety. This was not a chance encounter in the lunchroom but a planned meeting, behind closed doors, with representatives of both the PBA and management in attendance, to discuss a change in policy that PBA members viewed as affecting officer safety. These facts belie the City's contention that this was an impromptu meeting that did not entail any protected activity.

The City also argues that such protection is only afforded to discussions that concern negotiations and grievances. It states that neither condition applies here because the deployment of officers to an incident scene is the subject of managerial prerogative and not negotiable, and further, that no formal grievance procedure had been initiated. The Act does not explicitly limit either the protections afforded or the existence of an (a)(1) violation to negotiations or formal grievance procedures. See, e.g. In re Orange Bd. of Educ., P.E.R.C. No. 94-124, 20 NJPER 287 ( 25146 1994) (concluding that a school district engaged in unlawful interference, in violation of subsection 5.4(a)(1), when a principal called an emergency faculty meeting for the sole purpose of criticizing union leadership for the manner in which they conducted a rally before the school day).

However, the meeting here can fairly be characterized as discussion of a grievance. The Act leaves to the parties' negotiation the details of the grievance procedure, requiring only that the terminal step in such procedures be binding arbitration. N.J.S.A. 34:13A-29; see also N.J.S.A. 34:13A-5.3. Therefore, to determine whether the activity here was protected as part of a grievance procedure, we turn to the collective negotiation agreement between the City and the PBA, which states in relevant part

For the purposes of the Agreement, the term "grievance" means any complaint, difference or dispute between the Employer and any Employee or a group of Employees with respect to the interpretation, application or violation of policies, agreements or administrative decisions affecting them . . . .

Step One of the Grievance Procedure calls for an informal discussion with the employee's immediate supervisor.

Given the undisputed facts, the meeting here concerned a "complaint, difference or dispute" regarding the application of a policy or administrative decision that affected the PBA membership. The facts provide ample support for a finding that Gongora was engaged in protected activity at the meeting.

The City also argues that the failure to make a credibility determination as to the differing accounts regarding Gongora's behavior fatally flawed the reasoning here because Gongora was disruptive, taking his conduct outside the scope of protected activity. We disagree. The City was not prejudiced by the absence of an explicit credibility determination because the Hearing Examiner and PERC viewed the evidence regarding Gongora's conduct in the light most favorable to the City.

[W]hen acting as agents of the majority representative in negotiating contracts or pressing grievances, union representatives meet as equals with their management counterparts. They enjoy a wide latitude of speech and conduct as advocates and adversaries before their activity will be considered so indefensible as to lose the Act's protection.

[In re State of New Jersey (Dep't of Treasury), P.E.R.C. No. 2001-51, 27 NJPER 167, 174 ( 32056 2001).]

PERC described conduct that "may lose its statutory protection" as conduct that "indefensibly threatens workplace discipline, order and respect." Id. at 173.

The meeting here occurred in the Chief's office, behind closed doors. Even Chief Amos testified that Gongora was not insubordinate. There was no threat to workplace discipline, order or respect that justified a forfeiture of statutory protection.

In sum, the record shows that Gongora was engaged in the protected activity of presenting a grievance to management on behalf of PBA members and his involvement in this activity was a substantial factor in Chief Amos's order that he leave the meeting on threat of losing his employment. The City has failed to show by a preponderance of the evidence that Chief Amos's actions were justified either because Gongora's conduct lost its protected status or because there were legitimate business reasons for Chief Amos's threat or order to leave the meeting. See Bridgewater, supra, 95 N.J. at 244. We conclude that PERC's decision here was amply supported by the record and its own expertise in the interpretation of the Act.

Affirmed.

1 Our Supreme Court has observed that "the experiences and adjudications" under the Labor Management Relations Act (LMRA), 29 U.S.C.A. 141 to 187, are appropriate guides in determining unfair labor practices because the language and intent of the Act and the LMRA are substantially the same." In re Bridgewater, 95 N.J. 235, 240 (1984). See 29 U.S.C.A. 158(a)(1) (declaring it to be "an unfair labor practice for an employer . . . to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in" 29 U.S.C.A. 157).

2 Although the City agrees that PERC can interpret the provision as it did here without requiring the promulgation of a new rule or regulation, it contends that characterization of the Chief's conduct here as an unfair practice signals an expansion of subsection 5.4(a)(1) to an entirely new application. Because we do not find the decision here to constitute a change in the law, this argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D).