H.E. NO. 95-14

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

RUTGERS, THE STATE UNIVERSITY,

Respondent,

-and-	Docket No. CO-H-94-158

RUTGERS COUNCIL OF AAUP CHAPTERS,

Charging Party.

Appearances:

For the Respondent

Carpenter, Bennett & Morrissey, attorneys

(James E. Patterson, of counsel)

For the Charging Party

Reinhardt & Schachter, attorneys

(Denise Reinhardt, of counsel)

For the Intervenor

Wills, O'Neill & Mellk, attorneys

(G. Robert Wills, of counsel)

HEARING EXAMINER'S DECISION ON MOTION AND

CROSS-MOTION TO COMPEL DISCOVERY

On November 22, 1993 and on February 28 and June 24, 1994, Rutgers Council of AAUP Chapters filed an unfair practice charge and amended charges against Rutgers, The State University. The charge alleges that Rutgers violated subsection(s) 5.4(a)(1), (3) and (5)1/ of the New Jersey Employer-Employee Relations Act, N.J.S.A.

1/	These subsections prohibit public employers, their representatives or agents from: "(1) Interfering with,

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34:13A-1 et seq., by unlawfully soliciting and assisting in the filing of a grievance ("Edmunds document") by some unit employees against another unit employee (Figueira). The charge also alleges that the processing of the grievance under Article IX of the current collective agreement is a fundamental unilateral change and repudiates the grievance procedure. The amended charges incorporate these allegations and add, among other things, that the grievance against Figueira was improperly handled, violating his procedural due process rights and that after sustaining the grievance, Rutgers unlawfully transferred Figueira to an office at another University campus.

The Director of Unfair Practices granted unit employee Figueira's request to intervene, insofar as the University's actions may have violated rights protected under subsection 5.4(a)(3) and (1) of the Act.

The University filed an Answer on July 11, 1994, denying that it engaged in any unfair practice, admitting some facts, denying others and asserting some defenses.

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restraining or coercing employees in the exercise of the rights guaranteed to them by this act. (3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage 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."

The parties in this case have engaged in voluntary discovery, including propounding and responding to interrogatories and deposing witnesses. On October 31, 1994, Rutgers filed a Motion to Compel Discovery, pursuant to N.J.A.C. 1:1-10.1 et seq. It seeks to compel responses of AAUP witnesses, and seeks responses to specific questions propounded in interrogatories and at deposition.

On November 18, the AAUP filed a response, asserting that information sought by the University is not relevant and violates a "union representation" privilege, and attorney-client and work product privileges. Accompanying the briefs are the questions and responses. The AAUP filed a cross-motion seeking to compel answers to interrogatories.

N.J.A.C. 1:1-10.1 states that the purpose of discovery is to "facilitate the disposition of cases by streamlining the hearing and enhancing the likelihood of settlement or withdrawal." Discovery rules are to "give litigants access to facts which tend to support or undermine their position or that of their adversary."

Commission decisions are consistent with the intent of the administrative code. In Shrewsbury Bd. of Ed., P.E.R.C. No. 81-119, 7 NJPER 235 (¶12105 1981), and reaffirmed in State of New Jersey (OER), P.E.R.C. No. 88-27, 13 NJPER 752 (¶18284 1987), the Commission, relying on federal precedent, held:

...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....

[State of New Jersey (OER) at 754].

The Commission wrote that the majority representative did not have an absolute right to obtain all requested information;

...rather, the duty to disclose turns upon the circumstances of the particular case. Thus, an employer is not obligated to disclose information clearly irrelevant or confidential.

[Id. at 754].

Rutgers wants the AAUP and Figueira to respond to interrogatories and to questions asked at deposition. The AAUP was asked to provide the content of all communications and documents among AAUP officials, between AAUP officials and members, concerning the second amended charge. Rutgers also specifies that it wants all such communications pertaining to the "Edmunds document" and concerning "the position" (taken prior to the filing of the charge) that the grievance procedure "does not contemplate" grievances filed by unit employees against other unit employees (requests 2, 3, 4, 6). The University also wants "all [AAUP] instruction or guidelines" concerning the procedure for filing grievances (request 41).

The AAUP opposes these requests, arguing that the information sought is not relevant, or violates a privilege, or the request is "overbroad."

Relevant evidence is "evidence having an tendency in reason to prove any material fact." Dixon v. Rutgers, The State University, 110 N.J. 432, 442 (1988). Even if the materials sought are potentially relevant, their discovery may be precluded by legal privilege.

The charge and amended charges have 30 paragraphs -- among them are allegations that on July 28, 1993, the AAUP filed a "grievance" (Edmunds document); that Article IX requires the AAUP to deliver grievances "within one day of receipt"; and that on August 24, it demanded that the University treat the "grievance" "outside" Article IX.

Rutgers is entitled to probe the facts connected with the AAUP's apparently or arguably inconsistent filings, including documents drafted by and conversations between and among Figueira and union officials concerning these events. Having raised an inference that it complied with contractual obligations and almost one month later merely changed its decision, the AAUP cannot now complain that the University must accept that inference blindly. Did the AAUP initially regard the Edmunds document as "cognizable" under Article IX? If so, what obligation, contractual or otherwise, did the University have to regard it differently before and after August 24? Accordingly, I find that the requests pertaining to the Edmunds document are potentially relevant and responses must be provided, if they are not privileged. Similarly relevant are those communications and documents before November 22, 1993, concerning

the position that the grievance procedure does not contemplate grievances filed by unit members against other unit members. (Just how established that position was, if at all, and by whom, will be given its due evidentiary weight).

I agree with the AAUP that request 4, seeking all communications between AAUP and Figueira concerning the entire second amended charge is overbroad. The Union has alleged, however, that the University conducted the step one meeting on the Edmunds document "even though [Rutgers] knew Figueira was unavailable", and he was "deprived of his right to be heard."

The AAUP has argued that it is not relevant for the University to inquire about its motives concerning Figueira's "availability." I disagree with the AAUP's presumption about the purpose of the inquiry; "availability" is a fact in dispute and is potentially relevant to a determination on the circumstances under which the January 13, 1994 "step one meeting" was conducted.

Interrogatories served on Figueira seek all communications he had or his attorney had with the AAUP concerning the Edmunds document, the step one meeting, and the "propriety" of grievances filed by a unit member against another unit member. They also seek the content of all communications concerning the Edmunds document he had with B.J. Walker and Wells Keddie, two AAUP representatives.

Figueira has asserted a union representation privilege, attorney-client privilege and work product privilege to preclude this discovery.

The AAUP has asserted that the union representation privilege is really a "shorthand way of saying that respondent's demands violate the Act by interfering with protected activity." Responses to the University's requests "inject the administration directly into the internal affairs of the union." (AAUP Statement in Opposition, p. 8).

N.J.A.C. 1:1-15.4 identifies 18 privileges "recognized by law or contained in the following New Jersey Rules of Evidence...." Of the privileges asserted in this case, only the attorney-client privilege appears in the Rules.

No decision identifies a "union representation" privilege. The doctrine of privileged communication runs counter to the "fundamental theory...that the fullest disclosure of the facts will best lead to the truth....Thus, since privileges conceal the truth rather than advancing its ascertainment, courts have traditionally tended to restrict rather than create or expand them." Dixon v. Rutgers, The State University at 110 N.J. 446.

In Rawlings v. Police Department of Jersey City, 133 N.J. 182 (1993), the New Jersey Supreme Court rejected a plaintiff employee's argument that the attorney-client privilege prevented disclosure of a conversation with his union representative. After citing the statutory rule and definitions on attorney-client privilege (N.J.S.A. 2A:84A20; Evid. R.26), the Court emphasized that, "the privilege covers only communications between a client and a lawyer, and the client's communications made through 'necessary intermediaries and agents'." (citations omitted) Id. at 196.

The AAUP argues that, "here, the claimant of the privilege, the union, is the client. Unlike the employee-client's admissions in Rawlings, communications within the union among employees and unit members in pursuit of representation and litigation are protected."

Supreme Court decisions and policy and the administrative code discourage the creation of a "union representation" privilege. Furthermore, communications among officers and employees "in pursuit of representation and litigation" falls short of the Court's definition of privileged communication. Finally, the AAUP's lengthy charge asserts facts and raises inferences about its own conduct which the University may inquire about in discovery; a shield of a union representation privilege will only conceal the bases of these assertions and inferences. Accordingly, I do not find that a union representation privilege may preclude the discovery of potentially relevant evidence.

The AAUP has asserted an attorney-client privilege and filed a certification by the current AAUP president, Mary Gibson. Gibson certifies that,

since the grievance procedure may lead the AAUP to court, or may lead to final internal or external adjudication of a union claim, we regard the entire grievance process as part of the advancement of employee and union rights. We therefore have received the advice of counsel in general terms as to the way in which conduct interviews of potential grievants....

New Jersey Rule of Evidence 26(1) states that, "communications between lawyer and his client in the course of that relationship and in professional confidence, are privileged...." The privilege is broad enough to "shield such communications when made or shared with the attorney's agent." State v. Davis, 116 N.J. 341, 361 (1989). "Agents" include experts engaged by the attorney. See Coyle v. Estate of Simon, 247 N.J. Super. 277, 282 (App. Div. 1991).

I do not believe that the asserted privilege, based on the certification, shows that the communications were made "in professional confidence." The privilege accords the shield of secrecy "only with respect to confidential communications made within the context of the strict relation of attorney and client" (emphasis added). Id. at 247. "Advice of counsel in general terms" does not fit within the definition.

Furthermore, the information sought concerns communications before November 22, 1993, by and among union officials (past or present), and union members. Accordingly, I find that the potentially relevant communications are not precluded from discovery by the asserted attorney-client privilege.2/

2/	In State v. Pavin, 202 N.J. Super 255 (App. Div. 1985), the Court found a "middle ground" between a blanket privilege and none at all with respect to statements made by an appellant defendant to an insurance adjuster. The Court found that a privilege should shield such communications when they were "in

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The AAUP has also asserted a work product privilege concerning discussions of the Edmunds document between AAUP officials and unit members. It maintains that the privilege applies because the statements, "made to the union...are for the dominant purpose of litigation, namely the filing and processing of grievances." (AAUP Statement in Opposition, p. 13).

Closely allied to the attorney-client privilege is that of work product, designed to "protect the effectiveness of the lawyer's work as the manager of litigation." McCormick on Evidence (2nd Ed. West Publishing Co. 1972, p. 202). Such "product" lies in "interviews, statements, memoranda, correspondence briefs, mental

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fact made to the adjuster for the dominant purpose of the defense of the insured by the attorney and where confidentiality was the reasonable expectation of the insured." Id. at 262.

In this case, the communications sought were not made by or at the specific direction of counsel, nothing in the papers filed suggest that any direct communication with counsel had occurred and the AAUP conceivably had interests other than only protecting Figueira's rights under the agreement.

A unit member has a reasonable expectation of confidentiality when conferring with a union representative about processing a grievance. Similarly, union representatives ought not to be concerned about disclosures of their good faith strategies in advancing grievances. These communications may very well be entitled to a qualified privilege.

The anomaly of this case is that the AAUP's procedure in the filing of grievances, its attempted rescission of or redirecting a grievance and its "position" on whether certain grievances fall within Article IX of the agreement comprise a portion of the charge.

impressions, personal beliefs...." Hickman v. Taylor, 329 U.S. 495 (1947). Since the communications sought are potentially relevant and occurred prior to November 22, 1993, I reject the asserted work product privilege for the same reasons I denied the asserted attorney-client privilege.

ORDER

I order that the AAUP respond fully to requests 2, 3, 6 and 41 and Figueira respond fully to requests 1, 3, 6, 8, 9 and 10. The AAUP shall respond to request 4 insofar that it seeks communications pertaining to the Edmunds document and to the scheduling of a step one meeting.

I also Order that Rutgers shall respond fully to deposition questions asked of Ambrose.3/ Responses at deposition shall be in accord with this decision.

3/	Finding no representation privilege in this matter, I also dismiss Rutgers' asserted "parallel" privilege to shield responses of its witnesses at deposition.

I also do not need to rule on the "waiver" of privilege asserted in the wake of representations made in a July 22, 1994 newspaper article.

The information sought shall be provided by January 25, 1995. In light of the order, I am cancelling Hearing dates of January 19 and 20, 1995. The parties shall commence the Hearing on January 30 and 31, 1995, at our offices in Trenton.

Jonathon Roth

Hearing Examiner

DATED:	January 11, 1995

Trenton, New Jersey