H.E. No. 2013-6

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

BERGEN COUNTY COLLEGE,

Respondent,

-and-	Docket No. CO-2009-272

BERGEN COUNTY COLLEGE

SUPPORT STAFF ASSOCIATION,

Charging Party.

SYNOPSIS

A Hearing Examiner grants a motion for summary judgment in favor of a majority representative, based upon an unfair practice charge alleging that a public employer refused to supply information and documents necessary to process a disciplinary grievance contesting the termination of a unit employee, violating 5.4a(5) and (1) of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq.

The employer asserts that the requested information is protected from disclosure by confidentiality and deliberative process privileges. It argues that the need for confidentiality in an investigating sexual harassment charges outweighs the majority representative's need for that information.

The Hearing Examiner determined that under the undisputed facts, the information sought is relevant to the majority representative in carrying out its representational duties and contract administration. He also found that the confidentiality and deliberative process privileges does not excuse the public employer from its duty to provide information related to the grievance.

A Hearing Examiner's Decision on Motion for Summary Judgment which resolves all the issues in a complaint becomes a recommended decision, pursuant to N.J.A.C. 19:14-4.8. A Hearing Examiner's Report and Recommended Decision is not a final administrative determination of the Public Employment Relations Commission. The case is transferred to the Commission, which reviews the Report and Recommended Decision, any exceptions thereto filed by the parties, and the record, and issues a decision that may adopt, reject or modify the Hearing Examiner's findings of fact and/or conclusions of law. If no exceptions are filed, the recommended decision shall become a final decision unless the Chair or such other Commission designee notifies the parties within 45 days after receipt of the recommended decision that the Commission will consider the matter further.

H.E. No. 2013-6

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

BERGEN COUNTY COLLEGE,

Respondent,

-and-	Docket No. CO-2009-272

BERGEN COUNTY COLLEGE

SUPPORT STAFF ASSOCIATION,

Charging Party.

Appearances:

For the Respondent,

DeCotiis, Fitzpatrick, Cole & Wisler, LLP

(Avis Bishop-Thompson, of counsel)

For the Charging Party,

Bucceri & Pincus, attorneys

(Sheldon Pincus, of counsel)

DECISION ON

MOTION FOR SUMMARY JUDGMENT

On February 5, 2009, the Bergen County College Support Staff Association/NJEA, Inc. (Association) filed an unfair practice charge against the Bergen Community College Board of Trustees (College). The charge alleges that the College has repeatedly refused to supply it with information and/or documents necessary to process a disciplinary grievance contesting the termination of a College employee included in a collective negotiations unit represented by the Association. The Association alleges that Respondent's failure to provide the requested information violates 5.4a(1) and (5)1/ of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (Act).

The College asserts that the requested information is protected by both confidentiality and deliberative process privileges. It argues that because the information sought involves the College's investigation of an allegation of sexual harassment against one of its employees, its need to maintain confidentiality outweighs the Association's interest in or need for that information. The College also argues that the disputed documents fall within the deliberative process privilege and need not be produced because they set forth the pre-decisional mental impressions of the College's compliance officer.

The charge was accompanied by an application for interim relief seeking an order requiring the College to produce the requested documents and requesting a restraint on further processing of the grievance until the Association receives the requested documents and has had sufficient time to review them.

Both parties submitted certifications and other documents in the interim relief matter and the College filed an answering brief. On February 25, 2009, the parties appeared before a Commission designee for oral argument on the application for interim relief.

On March 9, 2009, the designee issued an Order denying interim relief. She found that the Association had not demonstrated a substantial likelihood of success on the merits because the College's confidentiality concerns and deliberative process privilege must be weighed against the competing concerns of the Association to attain all relevant information to effectively represent the employee. These interests, she determined, were more appropriately considered in a plenary hearing. The designee also wrote that the release of a sexual harassment investigative report during the processing of a disciplinary grievance was a novel issue lacking Commission precedent and therefore, not appropriate for an interim relief determination.

On July 31, 2009, the Director of Unfair Practices issued a Complaint and assigned the matter to Hearing Examiner Susan Stahl. On August 13, 2009, the College filed an Answer to the Complaint. In its Answer, the College denied violating the Act. It also asserted several affirmative defenses, including that the Association does not have a statutory right to the confidential harassment investigation report through a discovery request for a grievance hearing. On August 12, 2009, the Association filed a Notice of Motion for Summary Judgment along with a brief and supporting documents.

On September 9, 2009, the College filed a brief in opposition to the Association's Motion, along with certifications and other documents. On September 21, 2009, the Association filed a reply brief.

On January 14, 2010, the parties were notified that the Motion for Summary Judgment had been referred to a Commission designee other than Hearing Examiner Stahl. Recognizing the error, Examiner Stahl wrote to the parties, informing them that the Motion had been referred to her for a decision. On January 27, 2012, this matter was reassigned to me after Hearing Examiner Stahl retired.

I have conducted an independent review of the parties' briefs and supporting documents submitted in this matter. I have also reviewed the factual findings contained in the March 9, 2009, decision of the Commission designee in the interim relief proceeding. Those facts have not been disputed by either party. They are incorporated by reference in this decision. Based upon the record, I make the following:

FINDINGS OF FACT

1. On October 12, 2008, Keith Mitchell, a College employee and negotiations unit member, was assigned to work overtime at an October 12 walk-a-thon and fair held at the College by the Foundation for Autism Training and Education (FATE). FATE is unaffiliated with the College.

2. On October 15, Constance Lee, the College's Cultural Affairs Coordinator, informed Raymond Welch, EEO Compliance Officer/Executive Assistant to the College President, of an incident at the walk-a-thon that implicated inappropriate conduct by Mitchell directed toward a high school student volunteer.

3. Between October 15 and 20, Welch conducted an investigation of Lee's complaint. His investigation included interviews with several individuals, including Mitchell. Welch wrote a report based upon his investigation.

4. On December 5, 2008, the College conducted a pre-
termination hearing attended by Mitchell, NJEA representative Richard Comerford and College Human Resources Director James Miller. At the meeting, Miller referred to complaints and statements that had prompted the College's investigation of the alleged October 12 incident.

5. On December 5, the College terminated Mitchell, citing three reasons: (1) his conduct negatively affected his value as a member of the College community; (2) he neglected his assigned duties; and (3) he made false statements during the course of the College's investigation.

6. Also on December 5, NJEA representative Comerford requested certain information from the College regarding its investigation and the termination.

7. In response, the College supplied several, but not all of the documents sought by Comerford.

8. On December 6, the Association filed a grievance on behalf of Mitchell alleging that he was terminated without just cause or application of progressive discipline, violating Article XVII of the parties' collective negotiations agreement. The grievance also alleged that Mitchell was denied Association representation during the investigation, and that the College wrongfully withheld documents requested by the Association for use in processing the grievance.

9. On December 9, the Association renewed its request for information under the Open Public Records Act, N.J.S.A. 47:1:-1, et seq. (OPRA). On December 22, Welch denied the request.

10. On December 17 and 22, the Association repeated its requests for information. The College again supplied some, but not all of the requested documents.

11. The College refused to provide these documents:

(a) a copy of EEO Compliance Officer Welch's complete report and conclusions regarding his investigation of the matter;

(b) a copy of the statement made by Mitchell's immediate supervisor;

(c) transcription or notes of the interview of K. Biondo;

(d) transcription or notes of the interview of H. Knowlton;

(e) transcription or notes of the interview of L. Bogen;

(f) transcription or notes of the interview of complainant's mother;

(g) the Department of Public Safety interviews with Messrs. Morrison, Citakian and Rivera; and

(h) the Mitchell interview undertaken by Welch.

12. Sometime after the Commission designee issued her March 9, 2009 decision denying interim relief, the Association moved the grievance to the fourth step of the contractual grievance procedure, providing advisory arbitration. An award has not issued in that matter.

13. On December 28, 2010, Hearing Examiner Stahl wrote to the College, requesting that it provide the disputed documents to her for in-camera review with an assurance that the documents would remain in her possession only and would not be shared. On January 12, 2011, the College filed a reply, refusing the request.

14. On January 13, 2011, the Association filed a letter requesting that the hearing examiner exercise subpoena power to obtain the requested documents.

15. On January 17, the Association filed certifications from NJEA representative Comerford recounting its efforts to acquire the above-listed documents from the College for use during the grievance arbitration.

16. On January 28, the College filed a reply, together with certifications from its counsel.

17. On February 16, 2011, Hearing Examiner Stahl issued a subpoena duces tecum for the above-listed documents, requiring the College to deliver them by March 2, 2011, for in-camera review.

18.	On March 2, 2011, the College filed a motion to quash the subpoena duces tecum with the New Jersey Superior Court, Mercer County, Law Division.

19. On June 9, 2011, Judge Thomas W. Sumners, Jr., denied the motion to quash. He designated the disputed documents as "confidential" but ordered that the College produce un-redacted copies of those documents to the Commission for the sole purpose of processing the unfair practice charge in this matter as well as the grievance arbitration. The judge limited access to those purposes only and effectively sealed the un-redacted documents from public disclosure.

20. On July 14, 2011, the Commission received all of the disputed documents from the College.

21. On January 27, 2012, this matter was reassigned to me after Hearing Examiner Stahl retired.

ANALYSIS

Summary judgment must be denied if material factual issues exist. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995); Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74-75 (1954). If the facts are not disputed however, and the movant is entitled to judgment as a matter of law, the motion must be granted. Brill. N.J.A.C. 19:14-4.8(e) provides:

If it appears from the pleadings, together with the briefs, affidavits and other documents filed, that there exists no genuine issue of material fact and that the movant or cross-movant is entitled to its requested relief as a matter of law, the motion or cross motion for summary judgment may be granted and the requested relief may be ordered.

The parties agree that the Association requested specific documents pertaining to the termination of one of its unit members in December 2008, and that the College has refused to provide several of the documents requested. In these circumstances, I find that no genuine issue of material fact requires a plenary hearing.

The issue is whether the Association is entitled to the remaining requested documents as a matter of law. To answer this question, a threshold determination must be made regarding the relevancy of the information requested.

An employer must supply information to a majority representative, 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 representational duties and contract administration which includes grievance processing. 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 1997) aff'd NJPER Supp. 2d 198 (¶177 App. Div. 1988); Shrewsbury Bor. Bd. of Educ. and Shrewsbury Bor. Teachers Ass'n, P.E.R.C. No. 81-
119, 7 NJPER 235, 236 (¶12105 1981). Relevance is liberally construed. Morris Cty. and Morris Coun. No. 6, NJCSA, IFPTE, AFL-CIO, P.E.R.C. No. 2003-22, 28 NJPER 421 (¶33154 2002), aff'd 371 N.J. Super. 246 (App. Div. 2004), certif. den. 182 N.J. 427 (2005). The information need only be related to the union's function as the collective negotiations representative and appear reasonably necessary for the performance of this function. Id., 371 N.J. Super at 256. Relevance is determined through a discovery-type standard; a broad range of potentially useful information is allowed to the union for effectuation of the negotiations process. See NLRB v. Acme Indus. Co., 385 U.S. 432, 437 (1967); Proctor & Gamble Mfg. Co. v. NLRB, 603 F.2d 1310, 1315 (8th Cir. 1979). A refusal to supply potentially relevant information may constitute a refusal to negotiate in good faith and violate 5.4a(5) and derivatively a(1) of the Act. See In re Univ. of Medicine and Dentistry of New Jersey, 144 N.J. 511 (1996); Burlington Cty. Bd. of Chosen Freeholders and CWA, P.E.R.C. No. 88-101, 14 NJPER 327 (¶19121 1988), aff'd NJPER Supp. 2d 208 (¶183 App. Div. 1989).

In this case, the College's investigative findings, which may have underpinned Mitchell's termination, could have potentially assisted the Association in evaluating the "just cause" for his termination and in representing him at the grievance arbitration. I find that the information requested by the Association is relevant to its ability and duty to represent Mitchell in the disciplinary matter.

The College argues that the disputed documents are confidential because they were generated in response to a sexual harassment allegation, and it has a ". . . justifiable fear of harassment of employees and/or the high school student or other school personnel." (College brief at 9). The College maintains that the documents' confidentiality excuses it from a duty to produce them, despite their relevance, because a union's right to receive relevant information from an employer is not absolute.

Generally, an employer is not required to produce confidential information. State of New Jersey (OER) and CWA. The duty to provide information claimed to be confidential is evaluated on a case-by-case basis. Id. at 754. The party asserting a confidentiality interest has the burden of proof. NLRB v. United States Postal Serv., 888 F.2d 1568 (11th Cir. 1989).

Courts balance the competing interests in each case to determine if relevant information should be disclosed. Payton v. New Jersey Turnpike Authority, 148 N.J. 524, 542 (1997). In

Payton, our Supreme Court concluded that the public interest in eradicating employment discrimination outweighs the public interest in maintaining the confidentiality of internal sexual harassment investigations. Id. The Payton Court explained that confidentiality, like other privileges, is disfavored. Id., 148 N.J. at 539.

The Court in Payton also observed that the confidentiality privilege does not offer "blanket" protection; it rather

". . . applies selectively depending on the nature of the materials involved." Id. at 542. For example, the Court recognized that where highly personal information is involved, as in the particular context of sexual harassment investigations, there may be "legitimate concerns for confidentiality." Id.; see also Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979) (excusing employer's failure to disclose to union information regarding employees' psychological aptitude tests in preparation for grievance arbitration because disclosure would reveal sensitive information bearing on employees' competencies). If the employer's disclosure will reveal information that could reasonably be expected to enable harassment or retaliation, the confidentiality privilege may bar disclosure. N. Indiana Pub. Serv. Co. and Local Union No. 12775, 347 NLRB 210, 179 LRRM 1305 (2006) (employer's interview notes of a supervisor's misconduct towards employees confidential where the subject of the investigation allegedly threatened deadly violence).

Applying these principles to this matter, I conclude that the confidentiality privilege does not bar release of the disputed documents and the Association was entitled to them in order to effectively process the grievance contesting Mitchell's disciplinary termination.

The disputed documents essentially fall into two categories. The first category consists of handwritten notes taken by Compliance Officer Welch during interviews of Mitchell's co-
worker, the student's high school guidance counselor, Mitchell's employer, FATE's coordinator, the student's mother, the public safety officers who responded to the complaint and Mitchell. See Fact Number 11 (b-h). These notes are brief transcriptions that summarize each interviewee's statement to Welch. They mostly recount the interviewees' observations, opinions and responses regarding the interactions between the high school student and Mitchell. The second category consists of Welch's report, in which he summarizes some interviews, assesses the credibility of witness statements and explains his conclusion that Mitchell acted inappropriately. See Fact Number 11 (a).

The documents in both categories set forth information vital to the Association's effective defense of Mitchell. I find that the employer's interest in protecting its investigative process is outweighed by the Association's interest in representing its members and Mitchell's interest in due process. See Payton.

Unlike the psychological aptitude tests bearing on employees' basic competence in Detroit Edison, the disputed documents in this case cannot be characterized as similarly personal. The most personal fact revealed in the disputed documents is the name of the high school student, which had been previously disclosed by the College. Other materials set forth the age of the student; that the student has a physical impairment; the emotional reaction of the student as reported by the student's mother, and a remark attributed to Mitchell regarding the physical appearance of the student that Mitchell denies he made. Although these facts or descriptions are personal, I find that they are not sufficiently sensitive to justify the imposition of the confidentiality privilege.

I also find nothing in the disputed documents indicating that disclosure would reveal information that could reasonably be expected to enable harassment or retaliation, contrary to the College's view. In its brief, the College wrote of its

". . . justifiable fear of harassment" with no facts to support it. The confidentiality privilege does not apply to purely speculative claims of retaliation. See Metro. Edison Co. and Elec. Workers Sys. Counsel U-9, Local 563, 330 NLRB 107, 163 LRRM 1001 (1999). Although some of the interviewees believed that Mitchell engaged in stalking behaviors during the walk-a-thon, others, including the responding public safety officers, did not fully share that belief, according to Welch's report. Also, the College's claimed fear is undermined by its previous disclosure of the names of the participants and witnesses including the student/victim. Given these circumstances and absent factual substantiation of threats or intimidation, I find that the College has not demonstrated a reasonable belief that Mitchell may retaliate or pose a threat to the involved parties if the disputed documents are produced.

Considering the facts of this case in the light of the applicable legal principles, I find that the balance should be struck in favor of disclosure. The Association's interest in obtaining the disputed documents for Mitchell's disciplinary proceeding outweighs any competing interests because the documents do not contain sufficiently personal information and their disclosure could not reasonably be expected to enable retaliation. Accordingly, I find that the College did not meet its burden, and the confidentiality privilege, in this instance, does not prevent the release of the information to the Association.

Assuming that the College met its burden of proving that the documents are confidential, I find that several safeguards available to protect confidentiality in sexual harassment investigations - set forth by our Supreme Court in Payton - should allay the College's concerns. The safeguards are in-
camera review of documents, redaction of confidential information and the issuance of confidentiality and/or protective orders. Payton, 148 N.J. at 542; see also Dixon v. Rutgers, the State Univ. of New Jersey, 110 N.J. 432 (1988). A hearing examiner could use any combination of them to protect the confidentiality of any disputed document in this case.2/ "Only in truly extreme cases should the need for confidentiality require suppression of specific documents." Payton, 148 N.J. at 542.3/

The College also asserts that it did not violate the Act because the deliberative process privilege excuses it from its duty to provide information related to the grievance. The deliberative process privilege aims ". . . to establish a qualified privilege for governmental deliberative process materials because the government, like its citizens, needs open but protected channels for the kind of plain talk that is essential to the quality of its functioning." In re Liquidation of Integrity Ins. Co., 165 N.J. 75, 88 (2000) (internal quotations omitted). To qualify for the privilege, the document must be both "pre-decisional" and "deliberative, containing opinions, recommendations, or advice regarding agency policies." Id. at 84-85.

Not all government decision processes are protected by the privilege. The privilege should be narrowly construed. Redland Soccer Club, Inc. v. Dep't of the Army of the United States, 55 F.3d 827, 856 (3d Cir. 1995). More specifically, "[t]he [p]rivilege is properly limited to 'communications relating to policy formulation at the higher levels of government; it does not operate indiscriminately to shield all decision-making by public officials.'" Scott v. Bd. of Educ. of E. Orange, 219 F.R.D. 333, 337 (D.N.J. 2004) (quoting Grossman v. Schwarz, 125 F.R.D. 376, 381 (S.D.N.Y. 1989)). For example, the privilege does not protect "purely factual material," meaning factual information that does not "reveal the nature of the deliberations that occurred during" an agency's decision-making process. In re Liquidation of Integrity Ins. Co., 165 N.J. 75, 85 (2000); Educ. Law Ctr. v. New Jersey, 198 N.J. 274, 295 (2009). Nor does the privilege apply to the "routine operating decisions" of a government agency. Scott, 219 F.R.D. at 338 (concluding the privilege does not protect the deliberations leading up to Board of Education's decision to terminate Board employee).4/

The governmental agency initially bears the burden of showing that the documents it seeks to protect meet these two requirements. In re Liquidation of Integrity Ins. Co., 165 N.J. at 88. Once met, the presumption is against disclosure. Id. However, the government's significant interest in protecting the integrity of its deliberations can be overcome by showing a substantial or compelling need for the material. Id. Courts must apply a balancing test between the public interest in non-
disclosure and a party's need for the material, considering the following factors: (1) the relevance of the evidence; (2) the availability of other evidence; (3) the government's role in the litigation; and (4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions." Id. at 85-86.

If one assumes that the disputed documents are pre-
decisional and deliberative, they are not shielded by the deliberative process privilege because they fall outside its scope. The disputed documents in this case basically fall into two categories. The first category consists of the notes taken by Compliance Officer Welch during his interviews of the individuals who witnessed Mitchell's and the student's October 12 interactions, as well as interviews of other interested parties, namely Mitchell's supervisor and the student's mother. The second category consists of Compliance Officer Welch's own investigation report, which is dated a few weeks after he conducted the interviews.

Compliance Officer Welch's interview notes fall outside the scope of the privilege because they contain purely factual material. The interview notes support Welch's effort to concisely record the witnesses' retelling of events on October 12. The notes reflect the College's information-gathering effort and, therefore, do not risk revealing the College's deliberations.

His investigation report also falls outside the scope of the privilege because its content does not implicate an important public policy. The report merely provides an overview of the incident gathered from his interviews and analyzes whether the incident constituted inappropriate conduct. Like the Board's deliberations regarding the termination of an employee in Scott, Welch's deliberations were routine operating decisions and, thus, unprotected by the privilege.

Under 5.4a(1) and (5) of the Act, the College had a duty to provide the disputed documents to the Association for the purpose of processing the disciplinary grievance contesting Mitchell's termination. The College did not meet its burden of establishing that the confidentiality and deliberative process privileges shielded the disputed documents from production. Therefore, its failure to produce the disputed documents violated 5.4a(1) and (5) of the Act. Consequently, I grant the Association's motion for summary judgment.

CONCLUSIONS OF LAW

Bergen County College violated 5.4 a(5) and (1) of the Act when it refused to produce, upon demand by the Association, information necessary to process a disciplinary grievance contesting the termination of an employee. Specifically, the College violated the Act by refusing to produce information related to a sexual harassment investigation, including Compliance Officer Welch's interview notes and investigative report.

RECOMMENDED ORDER

1.	The Association's motion is granted.

2.	The College is ordered to:

A. Cease and desist from:

1.) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act, particularly by refusing to provide information requested by the Association necessary to process a disciplinary grievance contesting the termination of an employee; specifically, interview notes and an investigative report prepared by Compliance Officer Welch and enumerated in fact no. 11 (a-h);

2.) Refusing to negotiate in good faith with the Association concerning terms and conditions of employment of employees in its unit, particularly, by refusing to provide information requested by the Association necessary to process a disciplinary grievance contesting the termination of an employee, specifically interview notes and an investigative report prepared by Compliance Officer Welch and enumerated in fact no. 11 (a-h).

B. Take the following action:

1.) Provide all information to the Association, and the Association may use the information in its processing of the grievance arbitration related to this matter;

2.) Post in all places where notices to employees are customarily posted, copies of the attached notice marked as "Appendix A." Copies of such, on forms to be provided by the Commission, will be posted immediately upon receipt thereof and after being signed by the Respondent's authorized representative will be maintained by it for at least sixty (60) consecutive days. Reasonable steps will be taken by the Respondent to ensure that such notices are not altered, defaced or covered by other materials; and,

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

___________________________

Jonathan Roth

Hearing Examiner

DATED:	September 25, 2012

Trenton, New Jersey

Pursuant to N.J.A.C. 19:14-4.8(e) this ruling may only be appealed to the Commission by special permission in accordance with N.J.A.C. 19:14-4.6.

Any request for special permission to appeal is due by October 5, 2012.

WE WILL NOT interfere with, restrain or coerce employees in the exercise of the rights guaranteed to them by the Act, particularly by refusing to provide information requested by the Association necessary to process a disciplinary grievance contesting the termination of an employee; specifically, interview notes and an investigative report prepared by Compliance Officer Welch and enumerated in fact no. 11 (a-h).

WE WILL NOT refuse to negotiate in good faith with the Association concerning terms and conditions of employment of employees in its unit, particularly, by refusing to provide information requested by the Association necessary to process a disciplinary grievance contesting the termination of an employee, specifically interview notes and an investigative report prepared by Compliance Officer Welch and enumerated in fact no. 11 (a-h).

WE WILL provide all information to the Association, and the Association may use the information in its processing of the grievance arbitration related to this matter.