H.E. NO. 99-4

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

NEW JERSEY TURNPIKE AUTHORITY,

Respondent,

-and-	Docket No. CO-H-97-413

IFPTE LOCAL 200

Charging Party.

Appearances:

For the Respondent,

Riker, Danzig, Sherer, Hyland & Perretti, attorneys

(Laura Lencses McLester, of counsel)

For the Charging Party,

Balk, Oxfeld, Mandell & Cohen, attorneys

(Nancy Oxfeld, of counsel)

HEARING EXAMINER'S REPORT

AND RECOMMENDED DECISION

On June 9, 1997, IFPTE Local 200 filed an unfair practice charge against the New Jersey Turnpike Authority. The charge alleges that on May 30, 1997, the Authority unilaterally implemented a sexual harassment policy which does not permit "meaningful cross-examination." Preceding the implementation, the parties met twice for the alleged purpose of "agree[ing] upon a complete sexual harassment investigation procedure." The charge alleges that the parties had not reached "impasse" before implementation. The Authority's actions allegedly violate 5.4a(1)

and (5)1/ of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq.

On October 27, 1997, a Complaint and Notice of Hearing issued.

On November 18, 1997, the Authority filed an Answer, admitting to have agreed to "a right to cross-examination" in sexual harassment complaint cases. It also admitted meeting with Local 200 in May 1997 to discuss a specific sexual harassment complaint and the procedure for cross-examination. It contends that the "charge" is "non-negotiable."

On March 17, 1998, I conducted a hearing at which the parties examined witnesses and presented exhibits. Post-hearing briefs were filed by June 30, 1998.

Based on the record, I make the following:

FINDINGS OF FACT

1. The New Jersey Turnpike Authority is a public employer within the meaning of the Act. IFPTE Local 200 is a public employee representative within the meaning of the Act and represents supervisors in the maintenance and tolls departments.

1/	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. (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. On or about April 1, 1996, the parties signed a collective agreement extending from September 25, 1995 to September 19, 1999 (T70; C-3).2/

Article V (Non-discrimination) states:

The Authority and the Association recognize the Constitutional equality of each and every Employee, and agrees that no Employee shall be discriminated against in the course of his or her employment with this Authority by reason of age, sex, color, creed, nationality, political affiliation and Association activity, disability, marital status and veterans status. The Authority and the Association agree that matters filed under the Authority's procedure for sexual harassment and/or discrimination complaints shall be separate and apart from this Agreement's Grievance Procedure set forth in Article XIV or the Disciplinary Action procedure set forth in Article XV. The Authority's procedure for Sexual Harassment and/or Discrimination complaints shall be amended to permit cross examination of the alleged victim and/or witnesses by the Local 200 representatives or the accused's attorney.

The parties agree that if the final decision of the Authority is unsatisfactory to the accused, the Association may submit the matter to binding arbitration. All requests for binding arbitration must be in writing and filed within ten (10) days of the effective date of the Authority's action. The cost of arbitration shall be borne by the losing party. The arbitrator shall determine who is the losing party.

The parties agree to select a panel of three (3) special arbitrators who will serve on a rotating basis in all cases involving sexual harassment. The arbitrator, the Union and the accused's attorney must execute a confidentiality agreement.

2/	"T" represents the transcript, followed by the page number; "C" represents Commission exhibits; "R" represents Respondent exhibits.

The arbitration appeal shall be on the entire record made at the Authority and the arbitrator's standard for review shall require a finding that the Authority's action was arbitrary, capricious and unreasonable in order to set aside the decision of the Authority.

Article XIV (Grievance Procedure) provides a two step grievance procedure ending in binding arbitration. A "grievance" is defined as "any cause or complaint arising between the parties with reference to a term or condition of employment."

Article XV (Disciplinary Action) states that employees violating "rules, regulations and procedures" in "personnel policy and in manuals" shall be subject to disciplinary action. "Minor discipline" and "administrative discipline" are described, both providing for hearings and finally, binding arbitration.

Article XIX (Mutual Cooperation) states that "the parties agree to resolve problems arising from differences through the Grievance and Disciplinary Action procedures...and further agree to meet and discuss in good faith all matters giving rise to a dispute on the application of this Agreement."

3. Several years ago the Authority investigated an employee's sexual harassment complaint. The "procedure" was that the Authority EEO officer conducted an investigation and filed a written report to a "sexual harassment advisory committee." Its recommendation was forwarded to the Authority Executive Director who in turn reviewed, perhaps modified and ultimately conveyed a report to the Authority commissioners, who voted to accept (or reject) the report (T20; T70-T71).

Local 200 disapproved of the "procedure" because the accused employee had no opportunity to know the names of witnesses, or hear their testimonies (T21). Nor could the accused employee cross-examine anyone.

4. The parties negotiated their 1995-99 agreement for many months before signing it on April 1, 1996 (T21; T70). Negotiations started in either early 1995 or by June 1995, according to union and employer negotiators, respectively (T21-T22; T70). Negotiations over Article V were extensive and occurred at a "number of meetings" (T74; T75). Local 200 primarily wanted the right to cross-examine all witnesses, including the victim. The Authority initially resisted the demand, and eventually yielded, insisting that the victim be subject to cross-examination once only and that the investigation be kept confidential (T18-T19). Local 200 negotiators never complained of any ambiguity in Article V before signing the agreement (T76-T77).

5. Michael Calleo is president of Local 200 and was one of several members of the union negotiations team. When asked on direct examination about negotiations over Article V, he testified:

Well, they agreed to the right to cross-examin[ation] of witnesses, and what we did not put into writing was procedures as to how things would take place, and the discussion lead to that being handled at a later date. [T19]

On cross-examination, Calleo testified that he "understood" that "procedures and selection of a panel [of arbitrators in sexual harassment cases] were to be done at a later date" (T26). He

conceded that the "procedure" was not the "immediate concern at that point" (T19). When asked to name the Authority representative(s) agreeing to the proposal, Calleo testified, "To the best of my recollection, it would have been Ron Tobia or Meg Garrity" (T31). Tobia, Authority counsel, and Garrity, Authority Director of Human Resources, were the principal negotiators for the Authority (T17).

Garrity testified that Authority negotiators did not agree to "reopen" negotiations on Article V (T77; T80). She conceded, "the thing we talked about and we did not obviously select it that night, was the panel of arbitrators" (T77). Garrity specifically denied that the Authority agreed to negotiate any other issue about Article V in the future (T78). She also denied that the parties negotiated about when in the procedure the cross-examination would occur (T91).

IFPTE Local 200 offered no document (such as handwritten notes) to corroborate that it reserved or agreed with the Authority to reserve until some later date (i.e., after the agreement was signed on April 1, 1996) negotiations over the "procedure", as that term is used colloquially by Calleo or as it is used in the final sentence of the first paragraph in Article V. Calleo's testimony on this disputed fact was not explicit until prodded by counsel on direct examination (T19-T20). His memory was vague about which Authority representative agreed to negotiate procedures in the future. Even if his testimony was explicit, it was equally rebutted by Garrity. Accordingly, I do not find that the parties agreed in

negotiations to negotiate "procedures" after the agreement was executed.

I do find that the parties agreed to discuss in the future the selection of a panel of arbitrators that would preside over sexual harassment cases.

6. In September 1995, the Authority Commissioners approved a "new set of procedures for the reporting and administration of discrimination and sexual harassment complaints" (R-2; R-1). The enumerated forty-five paragraph procedure provides the "alleged offender" with "union representation" but nowhere provides a right to cross-examination. It also has several paragraphs devoted to confidentiality (R-1).

On October 23, 1995, Garrity received a memorandum (addressed to "fellow employee") from Acting Executive Director Edward Gross advising that the "procedures" were approved and that any employee wishing to learn about them may contact the EEO officer (R-2; T111).

7. No Authority representative testified that the promulgated sexual harassment procedures were given to any Local 200 representative during negotiations (T87). No Local 200 representative received or knew about the "procedures" before the collective agreement was signed on April 1, 1996 (T28-T29; T39; T101-T102).

Calleo testified that his understanding of the "procedure" -- as the word is used in Article V -- was based entirely on the

experience of litigating a prior sexual harassment complaint (T37; see finding no. 3). In light of the fact that no Local 200 representative knew about the promulgated procedures, I credit Calleo's testimony.

8. Sometime after April 1, 1996, a Turnpike toll plaza supervisor (and member of the Local 200 unit) was charged with sexual harassment. Calleo phoned Garrity to discuss how the hearing would unfold (T22).

On May 6, 1997, the parties met to discuss procedural issues about the upcoming hearing and the meaning of Article V (T22; T79). Attending for Local 200 was President Calleo, and representatives Joseph Guarino and Conrad Vuocolo, and counsel Sanford Oxfeld, who also represented the accused employee (T44). Attending for the Authority was Garrity and counsel James Anelli (T22; T46).

In general, the parties discussed procedural matters, such as the names of potential hearing officers, discovery and preferences for the panel of arbitrators (T23). The Authority refused to provide a copy of the harassment charge unless Local 200 signed a confidentiality agreement. Nor was the Authority inclined to allow cross-examination unless Local 200 produced its list of witnesses (T46-T47). Oxfeld disputed the existence of a "confidentiality" policy and inquired whether the complainant had to sign such an agreement (T48-T49). He also criticized both parties for not establishing when in the procedure cross-examination would

occur (T48; T97). Oxfeld had not participated in collective negotiations (T44-T45).

Oxfeld advocated that cross-examination should be conducted directly before the panel determining if "harassment" had occurred (T23; T51). The Authority maintained that cross-examination should take place before the assigned investigator, whose report is forwarded to the panel (T51-T52; T85).

Authority counsel Anelli suggested that the parties might negotiate over who would be on the panel as a way of circumventing the issue (T52). Anelli stated that Acting Executive Director Gross would have to approve the suggestion (T53). Later, Gross did not approve the suggestion.

9. Around May 20, 1997, the participants met again (T54). For the first time, Calleo was given the "procedures for investigating and prosecuting employee claims of unlawful discrimination and sexual harassment" (T54; T36; R-1). In reviewing the "procedures" at the meeting, Oxfeld commented that it stated nothing about cross-examination and a panel of arbitrators (T55).

Oxfeld also criticized the absence of a "just cause" provision for cases concerning sexual harassment (T56). Garrity replied that that matter was discussed in negotiations and that the parties agreed that the sexual harassment policy was in lieu of a disciplinary grievance procedure ending in arbitration (T57; T74).

10. On May 28, 1997, Authority counsel Anelli wrote a letter to Local 200 counsel Oxfeld advising that the Authority "will

not agree to negotiate its sexual harassment policy since such matters are clearly non-negotiable" (R-3). Anelli further advised that a copy of the charges against the unit member would be forwarded if a "stipulation of confidentiality" was signed by Local 200 and the charged employee.

ANALYSIS

N.J.S.A. 34:13A-5.3 entitles a majority representative to negotiate on behalf of unit employees over their terms and conditions of employment. Section 5.3 also defines an employer's duty to negotiate before changing working conditions:

Proposed new rules or modifications of existing rules governing working conditions shall be negotiated with the majority representative before they are established.

See also, Galloway Tp. Bd. of Ed. v. Galloway Tp. Ed. Ass'n, 78 N.J. 25, 48 (1978). Among the subjects an employer must negotiate are "grievance and disciplinary review procedures" which in turn "...shall be utilized for any dispute covered by the terms of such agreement."

In a 1996 case between these parties, our Supreme Court held that,

Negotiation of disciplinary procedures, including binding arbitration for the imposition of discipline based on claims of sexual harassment is specifically authorized as a negotiable subject and does not impinge on or implicate an inherent managerial prerogative.

[N.J. Tpk. Auth. and N.J. Tpk. Supvs. Ass'n, 143 N.J. 185, 205 (1996)]

The Court approvingly cited an earlier decision which recognized that a public employer may "contractually agree to abide by principles of procedural fairness...when determining an accused employee's guilt or innocence." Id at 143 N.J. 193-194, citing Cty. Coll. of Morris Staff Ass'n v. Morris Cty. Coll., 100 N.J. 383 (1985).

Two months after N.J. Tpk. Auth. issued, these parties signed a collective agreement with a provision (in Article V) "permitting cross-examination of the alleged victim and/or witnesses by the Local 200 representatives or the accused's attorney" in sexual harassment matters. The Authority thus met a statutory obligation.

Written collective agreements set terms and conditions of employment for the life of the contract, unless the parties mutually agree to change them. Middlesex Bd. of Ed., P.E.R.C. No. 94-31, 19 NJPER 544 (¶24257 1993); Passaic Cty. Reg. H.S. Dist. No. 1, P.E.R.C. No. 91-11, 16 NJPER 446 (¶21192 1990). The evidence on this record does not prove that the Authority agreed to reopen negotiations over the timing of a "cross-examination."

Local 200 argues nonetheless, that since the parties did not specifically negotiate when cross-examination occurs in sexual harassment cases, the Authority has the duty to do so after the agreement was signed. Local 200 also argues that the Authority has the same duty to negotiate over confidentiality safeguards preceding arbitration of sexual harassment charges. In support of this

argument, Local 200 cites the axiom that the duty to negotiate "extends beyond the period of contract negotiation and applies to labor-management relations during the term of the agreement." NLRB v. ACME Industrial Co., 385 U.S. 432, 436 (1967); see also, Galloway Tp. Bd. of Ed.

A public employer may violate its negotiations obligation by implementing a new rule concerning a term and condition of employment without first negotiating to impasse or having a contractual defense. Elmwood Park Bd. of Ed., P.E.R.C. No. 85-115, 11 NJPER 366 (¶16129 1985). A union must prove (1) a change (2) in a term and condition of employment (3) without negotiations. The employer defeats such a claim if it has a managerial prerogative or contractual right to make the change.

The evidence shows that the right to cross-examine first existed when the Authority and Local 200 signed their collective agreement on April 1, 1996. Just when that right could be invoked was not negotiated. By the end of May 1997, the Authority insisted that cross-examination be conducted before its investigator and promptly declared the whole policy "non-negotiable", a defense repeated in its post-hearing brief. The same declaration applied to pre-arbitral confidentiality issues.

I disagree with the Authority. The timing of a cross-examination is within the ambit of mandatorily negotiable procedural protections affordable to employees accused of sexual harassment. N.J. Tpk. Auth. Nothing in the contract "expressly and

specifically" authorizes the Authority to unilaterally determine when such cross-examinations occur. See Sayreville Bd. of Ed., P.E.R.C. No. 83-105, 9 NJPER 138 (¶14066 1983).

Accordingly, I recommend that the Authority violated 5.4a(5) and (1) of the Act by refusing to negotiate to impasse over the timing of cross-examinations of "the alleged victim and/or witnesses" in sexual harassment cases.3/

For the same reasons, I also recommend that the Authority violated 5.4a(5) and (1) by refusing to negotiate to impasse over "confidentiality" safeguards in the investigation of sexual harassment cases before arbitration. Although the Authority's approved "procedures" (see finding #6) include several provisions on confidentiality, they were not provided to Local 200 until May 1997, more than one year after the collective agreement was signed. These provisions cannot bind Local 200; it agreed only to the provision in Article V requiring confidentiality at arbitration.

I concede that Local 200's charge is suseptible to a reading that the entire set of procedures for sexual harassment investigations was unilaterally implemented. The facts are consistent with such a reading. But considering Local 200's opening

3/	Article V of the agreement refers to both "cross-examination" and to "confidentiality agreement." An arbitrator may very well have the contractual authority to decide the issues raised by Local 200's charge. But in view of the Authority's insistence that these subjects are "non-negotiable", I believe that this case cannot be deferred to arbitration. N.J. Dept. of Human Serv., P.E.R.C. No. 84-148, 10 NJPER 419 (¶15191 1984).

remarks at hearing, its presentation of testimony (omitting specific references to any of the procedure's 45 paragraphs) and its post-hearing brief, I believe that Local 200 is seeking redress only on the matters of cross-examination and confidentiality. I limit my findings, accordingly.

RECOMMENDATION

I recommend that the Commission find that the New Jersey Turnpike Authority violated 5.4a(5) and (1) of the Act by refusing to negotiate to impasse over the timing of cross-examination(s) and over confidentiality matters before arbitration in sexual harassment cases.

RECOMMENDED ORDER

I recommend that the Commission ORDER:

A.	That the Respondent Authority cease and desist from:

1. Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the New Jersey Employer-Employee Relations Act, particularly by refusing to negotiate in good faith with IFPTE Local 200 concerning the timing of cross-examinations and pre-arbitral confidentiality safeguards in sexual harassment investigation procedures.

2. Refusing to negotiate in good faith with IFPTE Local 200 concerning terms and conditions of employment, including the timing of cross-examinations and pre-arbitral confidentiality safeguards in sexual harassment investigation procedures.

B.	That the Authority take the following affirmative action:

1. Negotiate with IFPTE Local 200 upon demand over procedural matters concerning the sexual harassment investigation procedures (not included in the current collective agreement) including the timing of cross-examination(s) and pre-arbitral confidentiality safeguards.

2. 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.

3. Within twenty (20) days of receipt of this decision, notify the Chair of the Commission of the steps the Respondent has taken to comply with this order.

Jonathon Roth

Hearing Examiner

DATED:	September 14, 1998

Trenton, New Jersey

!!@GH0!!!@BT0!!!/120!!!@LN20!

WE WILL NOT interfere with, restrain or coerce employees in the exercise of the rights guaranteed to them by the New Jersey Employer-Employee Relations Act, particularly by refusing to negotiate in good faith with IFPTE Local 200 concerning the timing of cross-examinations and pre-arbitral confidentiality safeguards in sexual harassment investigation procedures.

WE WILL NOT refuse to negotiate in good faith with IFPTE Local 200 concerning terms and conditions of employment, including the timing of cross-examinations and pre-arbitral confidentiality safeguards in sexual harassment investigation procedures.

WE WILL negotiate with IFPTE Local 200 upon demand over procedural matters concerning the sexual harassment investigation procedures (not included in the current collective agreement) including the timing of cross-examination(s) and pre-arbitral confidentiality safeguards.