H.E. No. 83-34

Synopsis:

A Hearing Examiner recommends that the Public Employment Relations Commission find that the Respondent City did not violate Subsections 5.4(a)(1) and (5) of the New Jersey Employer-Employee Relations Act when it refused the Charging Party's request to produce the work sheets utilized by the City in preparation of its municipal budget for 1982. The "work sheets" are prepared by the City's Department Heads in the preliminary stages of budget preparation. The Hearing Examiner, relying on Federal and New Jersey precedent in connection with demands for data involving issues of relevance, burden and privilege, concluded that the City had acted in good faith when it made available to the Charging Party the 1982 municipal budget document. The Hearing Examiner was of the view that the "work sheets" were either confidential or privileged as the "work product" of the City in the budget preparation process.

A Hearing Examiner's Recommended Report and Decision is not a final administrative determination of the Public Employment Relations Commission. The case is transferred to the Commission which reviews the Recommended Report and Decision, any exceptions thereto filed by the parties, and the record, and issues a decision which may adopt, reject or modify the Hearing Examiner's findings of fact and/or conclusions of law.

PERC Citation:

H.E. No. 83-34, 9 NJPER 251 (¶14115 1983)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

41.7 72.77

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 83-034.pdf
Appellate Division:
Supreme Court:

H.E. NO. 83-34 1. H.E. NO. 83-34 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CITY OF UNION CITY, Respondent, -and- Docket No. CO-83-111-57 UNION CITY FMBA, LOCAL 12, Charging Party. Appearances: For the City of Union City Dorf & Glickman, Esqs. (Stephen S. Glickman, Esq.) For the Charging Party Loccke & Correia, Esqs. (Manuel A. Correia, Esq.) HEARING EXAMINER = S RECOMMENDED REPORT AND DECISION An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the A Commission @ ) on November 1, 1982 by the Union City FMBA, Local 12 (hereinafter the A Charging Party @ or the A FMBA @ ) alleging that the City of Union City (hereinafter the A Respondent @ or the A City @ ) has engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, as amended, N.J.S.A. 34:13A-1 et seq. (hereinafter the A Act @ ), in that the Respondent has refused the Charging Party = s request of September 30, 1982 for certain information concerning fiscal matters from the Commissioner of Revenue and Finance, to which the Charging Party claims that it is entitled for the purpose for collective negotiations, all of which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1), (2), (5) and (7) of the Act.1/ It appearing that the allegations of the Unfair Practice Charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on January 6, 1983. Pursuant to the Complaint and Notice of Hearing, a hearing was held on March 3, 1983 in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. The essential facts were stipulated to by counsel for the parties. Oral argument was waived and the parties filed post- hearing briefs by March 28, 1982. An Unfair Practice Charge having been filed with the Commission, a question concerning alleged violations of the Act, as amended, exists and, after hearing, and after consideration of the post-hearing briefs of the parties, the matter is appropriately before the Commission by its designated Hearing Examiner for determination. Upon the stipulated record, the Hearing Examiner makes the following: FINDINGS OF FACT 1. The City of Union City is a public employer within the meaning of the Act, as amended, and is subject to its provisions. 2. The Union City FMBA, Local 12 is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions. 3. The Respondent will provide the FMBA with a copy of the 1982 municipal budget for the City of Union City. 4. The Respondent will provide the FMBA with the necessary payroll records to identify the names of those employees in which the FMBA is interested for purposes of negotiations and will also provide the Civil Service status and the budgeted salary for the said employees. After the FMBA has identified the names of the employees, the Respondent will provide the FMBA with dates of their hire. 5. Regarding a request by the FMBA for the amount of overtime allocated in 1982 and the number of new employees budgeted for, the City represents that no new employee slots were budgeted for in 1982 and that the overtime amounts appear in the City = s municipal budget for 1982. 6. The Respondent will not provide the FMBA with the 1982 budget A work sheets, @ which are prepared by its Department Heads as part of the City = s budget process. These A work sheets @ include salaries, wages and other expenses, including equipment expenses for the Department. THE ISSUE Did the Respondent violate Subsections (a)(1) and (5) of the Act2/ when it refused to provide the FMBA with the A work sheets @ prepared by the Department Heads as part of the City = s 1982 budget process? DISCUSSION AND ANALYSIS The Respondent Did Not Violate Subsections (a)(1) And (5) Of The Act When It Refused To Provide The FMBA With The A Work Sheets @ Prepared By The Department Heads In The City = s 1982 Budget Process The Charging Party argues its request for the A work sheets @ from the standpoint of an Interest Arbitrator, functioning under Chapter 85, N.J.S.A. 34:13A-14 et seq. However, in the opinion of the Hearing Examiner, Chapter 85 has no bearing on the issue to be resolved herein. Rather, resort will be made to Federal and New Jersey precedent in connection with demands for data where the issues of relevance, burden and privilege have been involved. The Respondent cites only Cincinnati Steel Castings Co., 86 NLRB No. 83, 24 LRRM 1657 (1949), a case involving a request for data in connection with collective negotiations. In Cincinnati the union requested a written list of the names of the employees in the unit with their classifications and wage rates. The employer = s response was to offer to furnish the information orally. There were 98 employees in the unit and the union had the names of all of the employees. The union, in referring to its list of employees, inquired of the employer regarding the classifications and wage rates of approximately 70 percent of the employees in the unit. The employer furnished all of the information requested orally. The Board, after noting that it had frequently held that an employer = s refusal to furnish necessary information to the union during bargaining negotiations constituted a lack of good faith, and a violation of Section 8(a)(5) of the National Labor Relations Act, then stated: A ...However, we have not held, nor do we now hold, that the employer is obligated to furnish such information in the exact form requested by the representative. It is sufficient if the information is made available in a manner not so burdensome or time-consuming as to impede the process of bargaining. @ (24 LRRM at 1658) Emphasis supplied. Clearly, the Cincinnati decision is relevant to the disposition of the case at bar. It is noted that the United States Supreme Court has affirmed the NLRB in decisions involving the request of a union for relevant data for use in collective negotiations. Thus, in NLRB v. Truitt Mfg. Co., 351 U.S. 149, 38 LRRM 2042 (1956), the Court enforced a Board order that an employer provide a union with data substantiating an alleged inability to grant an economic increase. However, the Supreme Court has reversed the Board when it ordered the production of employee aptitude test scores where there was involved an issue of confidentiality or privacy: Detroit Edison Co. v. NLRB, 440 U.S. 301, 100 LRRM 2728 (1979). In a non-labor context the United States Supreme Court has held that the A work product @ of an attorney is privileged and need not be produced in discovery proceedings or at trial: Hickman v. Taylor, 329 U.S. 495 (1947). The Hickman case was cited by the Law Division of the Superior Court in Stephan v. LaCorte, 77 N.J. Super. 443 (1962), which involved the request of the plaintiff for an order to inspect the written statement of the defendant, which had been given to the defendant = s insurance carrier. The Court said that there was no overriding injustice or undue hardship in denying the plaintiff = s request. The written statement had only been used by the defendant to refresh his recollection in preparation for an oral disposition. Cf., State v. Hunt, 25 N.J. 514 (1958). Turning now to the case at bar, the Hearing Examiner finds and concludes that the request of the FMBA for the A work sheets @ used by the City in the preparation of its municipal budget are not relevant to the needs of the FMBA in collective negotiations. The municipal budget for 1982 should suffice: Cincinnati Steel Castings Co., supra. Further, the A work sheets @ are, in the opinion of the Hearing Examiner, confidential and privileged as A work product @ of the City in connection with the preparation of its budget. Given the fact that the FMBA has been given access to the 1982 municipal budget there is plainly no overriding injustice or undue hardship visited upon the FMBA by the City = s refusal to provide the A work sheets @ as requested: Stephan v. LaCorte, supra. For all of the foregoing reasons the Hearing Examiner will recommend dismissal of the Complaint. * * * Upon the foregoing, and upon the entire record in this case, the Hearing Examiner makes the following: CONCLUSION OF LAW The Respondent did not violate N.J.S.A. 34:13A-5.4(a)(1), (2), (5) and (7) when it refused to provide the Charging Party with A work sheets @ prepared by the Department Heads as part of the City = s 1982 budget process. RECOMMENDED ORDER The Hearing Examiner recommends that the Commission ORDER that the Complaint be dismissed in its entirety. /s/Alan R. Howe Hearing Examiner DATED: April 4, 1983 Trenton, New Jersey 1/ These Subsections prohibit public employers, their representatives or agents from: A (1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this Act. (2) Dominating or interfering with the formation, existence or administration of any employee organization. (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. (7) Violating any of the rules and regulations established by the commission. @ 2/ It does not appear to the Hearing Examiner that the Respondent = s conduct as alleged constitutes a violation of Subsections (a)(2) and (7) of the Act. Accordingly the Hearing Examiner will recommend dismissal of these allegations. ***** End of HE 83-34 *****