H.E. NO. 2003-6

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

STATE OF NEW JERSEY

(DEPARTMENT OF HUMAN SERVICES),

Respondent,

-and-	Docket No. CO-H-97-298

COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO,

Charging Party.

Appearances:

For the Respondent, David Samson, Attorney General

(George N. Cohen, Deputy Attorney General)

For the Charging Party, Weissman & Mintz, Attorneys

(Judiann Chartier, Esq., of counsel)

HEARING EXAMINER'S REPORT

AND RECOMMENDED DECISION

On March 4, 1997, the Communications Workers of America, AFL-CIO (CWA) filed an unfair practice charge with the Public Employment Relations Commission against the State of New Jersey, Department of Human Services (State or DHS). CWA alleges that the State violated sections 5.4a(1) and (5)1/ of the New Jersey

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; and (5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative."

Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (Act) when sometime between July 1996 and June 1997, the State failed or refused to provide CWA with the employment status of four physicians employed at the DHS Trenton Psychiatric Hospital. CWA also alleges that in March 1995, the State unilaterally changed the terms and conditions of employment of the four physicians by laying them off and immediately rehiring them at lower rates of pay and benefits, also in violation of section 5.4a(1) and (5). On April 18, 2000, pursuant to the State's Motion for Summary Judgment, I dismissed those allegations because I found they were untimely. See, State of New Jersey (DHS), H.E. No. 2000-8, 26 NJPER 251 (¶31099 2000). Pursuant to that decision, on May 3, 2000, a hearing was scheduled on the remaining timely allegations.

On May 3, 2000, an Order Scheduling Hearing was issued on the remaining timely allegations.2/

On October 15, 1997 and January 8, 2001, the State filed an Answer and an Amended Answer denying that it violated the Act. The State asserts that CWA's request for the employment status is untimely; that the information is not relevant to CWA because regardless of the doctors' status -- independent contractors or special services employees -- CWA does not represent either status; and, finally, since the State has provided the information, the issue is moot.

2/	The parties requested and were granted several postponements of the hearing between April 2000 and November 2001, in order to pursue voluntary resolution of the issues. An order scheduling this hearing was sent on November 30, 2001.

On January 31, 2002, I conducted a hearing at which the parties examined witnesses and presented exhibits.3/ Post-hearing briefs were filed by May 20, 2002. Based upon the entire record, I make the following:

FINDINGS OF FACT

In addition to the findings from this hearing, I rely on the following facts found in State of New Jersey (DHS), H.E. No. 2000-8, 26 NJPER 251, 252, 253 (¶31099 2000):

1.	The State and CWA (Professional Unit) are parties to a collective negotiations agreement which includes physician specialists and clinical psychiatrists.

2.	By letter dated February 3, 1995, the State notified Physician Specialists Irfan Hug, Ghousia Hashmi, Sarla R. Chhabria and Clinical Psychiatrist Nirmala Yarra-Karnam that 'due to fiscal and budgetary constraints . . . [their] positions [at the Trenton Psychiatric Hospital] were being terminated, effective March 3, 1995.' CWA Representative John McCool was sent a copy of each letter.

3.	All four doctors had been assigned to the Medical Officer on Duty Program (MOD) prior to their layoff. . . .

5.	On about March 3, 1995, the four physicians agreed to perform medical services for DHS.

6.	On March 17, 1995, [CWA Local 1040 Staff Representative Jenna Gledhill-Huff] submitted a group grievance alleging that: 'On 3/3/95, Trenton Psychiatric Hospital violated above stated Article XL by changing the terms and conditions of the Medical Doctors in the M.O.D. Program.'

3/	"T " refers to the transcript of the hearing on January 31, 2002; "C " refers to Commission exhibits; and "CP " refers to Charging Party's exhibits.

7.	On May 1, 1995, DHS Hearing officer Paul Gulli conducted a step 1 grievance meeting.

8.	On May 2, 1995, Gulli denied the grievance (step 1 Answer) on three grounds.

9.	On June 7, 1995, DHS' Employee Relations Coordinator Anita Avolio denied the grievance at step 2.

10.	On October 30, 1995, CWA appealed the matter to the Department of Personnel's Division of Appellate Practices and Labor Relations. Gledhill-Huff's letter acknowledges her receipt of the step 1 and 2 decisions, together with 'all pertinent documents.' In the appeal, she revealed that she knew that after the layoffs, the doctors were offered '. . . the same appointment at an hourly rate of pay. . . . They would work 24 hours a week (part-time), and their benefits would be maintained through COBRA.' Gledhill-Huff stated that the State's action was '. . . a method of eroding the bargaining unit, and a violation of Article XL of the negotiated contract.'

These facts were developed on the record in this hearing:

Special services employees are hired on an hourly basis and do not have an official classification under the Civil Service Statute or Department of Personnel (DOP) regulations. Throughout the 1980s and into the 1990s, CWA had a dispute with the State regarding these employees. Litigation ensued; CWA eventually received written assurance from the Commissioner of the DOP that the State would not use special services employees. Relying on the assurance, CWA believed that the State was no longer hiring special services employees (T28-T29).

Steven Weissman is the attorney for CWA (T14). In the Spring of 1995, Gledhill-Huff advised Weissman about the layoff of

the four doctors and that they were continuing to work as either independent contractors or consultants (T14). Weissman advised Huff that if they were in either of these two employment classifications, there was very little CWA could do since subcontracting is a managerial prerogative in New Jersey (T14-T15).

About a year later, in the Spring of 1996, Gledhill-Huff called Weissman again at the doctors' request to set up a meeting with him (T15). At the meeting, Weissman learned enough to question the accuracy of the independent contractor/consultant label (T15-T16). He suspected that the doctors might be employees (T16).

On July 17, 1996, Weissman sent a letter to Deputy Director David Collins of the Governor's Office of Employee Relations (OER) advising him that CWA had recently learned that after the doctors had been laid off, they continued to perform the same duties and had been working the same hours, but received lower wages and benefits; that they were not being treated as independent contractors but were paid as employees of the DHS (CP-1; T17-T18). Weissman asserted that the February 1995 layoff was an unlawful attempt to circumvent the Union and the negotiated agreement, and requested reinstatement, back pay and back dues (CP-1; T17-T18).

In correspondence dated July 29, 1996, Collins advised Weissman that he would look into the matter (CP-2; T21).

In August 1996, Weissman learned in a conversation with Collins that ". . . it was [Collins'] understanding that the doctors were being used as consultants or independent contractors" (T22).

Weissman advised Collins that if they were not so employed then they had been unlawfully laid off and their employment conditions had been improperly changed (T22).

By the end of 1996, Weissman had not been informed of the State's determination or understanding of the doctors' employment status (T23). On January 6, 1997, Weissman renewed his request to Collins (T23-T24; CP-3). Weissman wrote:

By letter dated July 29, 1996 you advised me that you would look into this matter and get back to me. CWA has held off filing any legal actions based upon your letter. However, unless you can confirm that the doctors in question are in fact independent contractors and are not employed by the State performing bargaining unit work, CWA will be compelled to file an unfair practice charge on their behalf with PERC.

[CP-3]

Weissman heard nothing from Collins. On March 4, 1997, CWA filed this unfair practice charge (T25). During the period leading up to the charge, Collins was the deputy director of the OER. Collins predeceased the hearing and was unavailable as a witness. On January 8, 2001, Collins executed a certified statement to which he attached a copy of Weissman's January 6th letter, upon which was Collins' handwritten annotation: "1/9/97 Told Steve they are special services" (T5; C-2; attached Certification of David Collins). Weissman denies that the January 9, 1997 conversation occurred (T25, T27, T31, C-1). I credit Weissman on this fact. Weissman claimed he first learned from a State deputy attorney general that the State regarded the doctors as special services employees at a Commission exploratory conference in June 1997 (T27, T29-T30, T32). On March

4, 1997, Weissman asserted that the State had not yet responded to CWA about the doctors' status. I credit Weissman's testimony concerning the controversy surrounding the State's use of special services. Weissman testified: "If Mr. Collins had said to me that these doctors were being used as special services employees that would have been like waving a red flag in front of my face" (T31). On July 3, 1997, Weissman filed an appeal with the DOP protesting the use of special services for the doctors (CP-4; T28-T30). The timing of the unfair practice charge and the DOP appeal is consistent with Weissman's June 1997 discovery of the information that the doctors were employed under special services.

ANALYSIS

I recommend that the State violated the Act from September 4, 1996 to March 4, 1997, by failing to provide information concerning the employment status of the four doctors laid off and rehired in 1995. The State's arguments as to timeliness, relevance and mootness are not persuasive.

N.J.S.A. 34:13A-5.3 requires parties to "meet at reasonable times and negotiate in good faith with respect to grievances, disciplinary disputes, and other terms of employment." Section 5.3 also empowers an employee organization selected by a majority of employees in a negotiations unit to be the exclusive representative of all the employees in that unit. The majority representative must represent all negotiations unit employees fairly, regardless of whether an employee is a union member. A public employer must

provide information requested by the majority representative so that it can carry out its representational duties. Hardin and Higgins, The Developing Labor Law, 856-858 (4th ed. 2001).

An employer's refusal to supply relevant information is an unfair practice and violates N.J.S.A. 34:13A-5.4a(5) and derivatively, 5.4a(1). The employer's duty to disclose "turns upon the circumstances of the particular case." See Shrewsbury Bd. of Ed., P.E.R.C. No. 81-119, 7 NJPER 235 (¶12105 1981); State of New Jersey (Dept. of Higher Ed.), P.E.R.C. No. 87-149, 13 NJPER 504, 505 (¶18187 1987); Burlington Cty. Bd. of Chosen Freeholders and CWA, P.E.R.C. No. 88-101, 14 NJPER 327 (¶18121 1988), aff'd NJPER Supp.2d 208 (¶183 App. Div. 1989)("Burlington Cty."); Morris Cty., P.E.R.C. No. 2003-22, 28 NJPER (¶ 2002); J.I. Case Co. v. NLRB, 253 F.2d 149, 41 LRRM 2679 (7th Cir. 1958); Kroger Co., 226 NLRB 512, 93 LRRM 1315 (1976).

In State of N.J. (OER) and CWA, P.E.R.C. No. 88-27, 13 NJPER 752 (¶18284 1987), recon. den. P.E.R.C. No. 88-45, 13 NJPER 841 (¶18323 1987), aff'd NJPER Supp.2d 198 (¶177 App. Div. 1988) the Commission stated:

As majority representative, CWA has the statutory right to information in the employer's possession which is relevant to a grievance. In Shrewsbury Bd. of Ed., P.E.R.C. No. 81-119, 7 NJPER 235 (¶12105 1981), relying on federal precedent, we held that an employer must supply information if we find a probability that the information is potentially relevant and that it will be of use to the union in carrying out its statutory duties. Id. at 236. Relevance in this context is determined under a discovery-type standard, not a trial-type standard, see NLRB v. Acme

Industrial Co., 385 U.S. 432, 437, 64 LRRM 2069 (1967), and therefore 'a broad range of potentially useful information should be allowed the union for the purpose of effectuating the bargaining process.' Proctor & Gamble Manufacturing Co. v. NLRB, 603 F.2d 1310, 1315, 102 LRRM 2128 (8th Cir. 1979). The rationale underlying this discovery policy is to enable the majority representative to have sufficient information to evaluate the merits of an employee's claim. We recognized, however, that the majority representative does not have an absolute right to obtain all requested information; rather, the duty to disclose 'turns upon the circumstances of the particular case.'

[Id. at 754]

Applying these principles to this case, I find that in July 1996, CWA sought confirmation from the State about the doctors' employment status, having recently learned information which led it to question the assumption that the doctors were not employees but outside contractors. The information is relevant to CWA's concern over the use of special services since it affects CWA's negotiations unit. CWA's need for the information flows from its duty to represent unit employees, to protect their terms and conditions of employment and to protect the scope of its unit. The State did not respond until June 1997, three months after the charge was filed.

The State argues that the charge is untimely (T11-T12). N.J.S.A. 34:13A-5.4(c) provides, in relevant part:

no complaint shall issue based upon any unfair practice occurring more than 6 months prior to the filing of the charge unless the person aggrieved thereby was prevented from filing such charge in which event the 6 months period shall be computed from the day he was no longer so prevented.

Unless a charging party can demonstrate that it was prevented from filing within six months of the operative event, the claim is time-barred. Equitable considerations are relevant when determining if a person has been "prevented" from filing a timely charge under N.J.S.A. 34:13A-5.4(c) and should be weighed against the Legislature's objectives in imposing a limitations period. In Kaczmarek v. N.J. Turnpike Auth., 77 N.J. 329, 339 (1978), the charging party's diligent pursuit and timely filing of a charge, although in an inappropriate forum, justified the tolling of the statute of limitations as the plaintiff "at no time slept on his rights." Id. at 341.

The State argues: "Counsel for CWA has no independent status here. Counsel knows what the client knows-and the CWA knew

. . . in February, 1995, of the proposed layoff and rehire of the doctors at an hourly rate. Belated inquiries to the employer will not toll the six month statute of limitations." (Post-hearing brief, page 6). The State cites City of Margate (Cattie), P.E.R.C. No. 94-40, 19 NJPER 572 (¶24270 1993)(Margate). There, in June 1991, David and Jules Cattie took a test to become lifeguards. Both received failing scores and were not hired. Beginning on June 19, their father wrote a series of letters to various Margate officials protesting his sons' scores and claiming that both were retaliated against for Jules' exercise of protected activity. Although the father learned by July 1991 that Jules' scores had been altered, it was not until April 1992 that he learned that David's scores had

also been altered. The Commission rejected Cattie's argument that since he did not know about the falsification of David's scores until ten months later, he was prevented from filing a charge; thus tolling the statute of limitations. The letters sent by the father to the City demonstrated sufficient knowledge of retaliation against both brothers in 1991 so that the statute of limitations should not be tolled. Id. at 573.

In Margate, the Commission found that the October 21, 1991 letter demonstrated that the charging party may not have been hired due to retaliation for his brother's protected activity. Although the alleged falsification of David's test scores may not have been known by him then, he believed that an unfair practice might have occurred. Unlike the charging party in Kaczmarek, Cattie did not attempt to file this claim. The Commission held that the Legislative purpose of encouraging the diligent pursuit of causes of action and preventing stale claims would be frustrated by ignoring the statute of limitations.

This case is distinguishable. Here, from March 1995 to July 1996, CWA operated under an impression that the doctors were laid off and rehired as independent contractors. A grievance was filed shortly after the layoff in an attempt to preserve the doctors' unit status, benefits and employment. In my Hearing Report on the Motion for Summary Judgment, I found that in 1995, CWA had sufficient information to file an unfair practice charge on the allegation that the State unilaterally changed terms and conditions

of employment or eroded the negotiations unit. Because those charges were not filed until 1997, they were untimely. I view CWA's request for information in July 1996 and the State's nonresponsiveness extending to March 1997 to be a separate unfair practice. As of March 4, 1997, the date the charge was filed, the State had not responded to the request for information and I found that allegation timely.

The State also argues that the information sought is not relevant to CWA's representational duties because CWA has no right to represent either special services employees or independent contractors. However, the Commission has stated that information must be provided if there is a probability that the information is potentially relevant and that it will be of use to the union in carrying out its statutory duties. The fact that CWA had represented these employees in its professional unit before their layoff makes the information potentially relevant to CWA's representational rights. It relied on the representation or belief that the State regarded these former CWA unit members as independent contractors, perhaps to its detriment, until learning in June 1997 that the doctors are special services employees. CWA has previously contested the State's use of special services as outside DOP regulations. Once in possession of the information, it reasserted a challenge to the State's use of that classification (CP-4). The information sought was potentially relevant to CWA's role as negotiations representative and the State had an obligation to provide it.

The information was not provided as of the filing of the charge. The fact that it was later provided does not make the State's earlier conduct moot. The State offered no reason for not providing the information and no reason for believing that its conduct would not recur. Cf. Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 120 S. Ct. 722 (2000)(party asserting mootness must persuade court that challenged conduct cannot reasonably be expected to recur). The collective negotiations process can function effectively only with the proper exchange of relevant information. Hardin and Higgins, The Developing Labor Law, 856 (4th ed. 2001); Burlington Cty.; Morris Cty.; State of NJ (OER). Accordingly, I find that the charge is not moot.

Therefore, based on all of the above, I conclude and recommend that the Commission find that between September 4, 1996 and March 4, 1997, the State violated section 5.4a(5) and derivatively 5.4a(1) by failing or refusing to provide CWA with information about the employment status of the four named doctors at the DHS hospital.

RECOMMENDED ORDER

I recommend that the Commission ORDER that:

A. Respondent County cease and desist from

1. Interfering with, restraining or coercing its employees in the exercise of rights guaranteed to them by the Act, particularly by refusing to provide CWA with the employment status of employees.

2. Refusing to negotiate in good faith with CWA concerning terms and conditions of employment, particularly by not disclosing relevant information.

B. That the County take the following affirmative action:

1. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix "A." Copies of such notice on forms to be provided by the Commission shall be posted immediately upon receipt thereof, and, after being signed by the Respondent's authorized representative, shall be 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. Notify the Chair of the Commission within twenty (20) days of receipt what steps the Respondent has taken to comply herewith.

Elizabeth J. McGoldrick

Hearing Examiner

DATED: October 23, 2002

Trenton, New Jersey

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

WE WILL NOT interfere with, restrain or coerce our employees in the exercise of rights guaranteed to them by the Act, particularly by refusing to provide CWA with information about the employment status of employees.

WE WILL NOT refuse to negotiate in good faith with CWA concerning terms and conditions of employment, particularly by not disclosing relevant information about the employment status of employees.