In the Matter of Probation Association of New Jersey And

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2101-13T3
APPROVED FOR PUBLICATION
IN THE MATTER OF PROBATION September 1, 2015
ASSOCIATION OF NEW JERSEY AND
APPELLATE DIVISION
PETER TORTORETO AND ROBYN GHEE.
________________________________
Submitted March 10, 2015 – Decided September 1, 2015
Before Judges Fisher, Accurso and Manahan.
On appeal from the New Jersey Public
Employment Relations Commission, Docket
No. CI-2011-045.
Law Office of C. Gregory Stewart, attorneys
for appellants Peter Tortoreto and Robyn
Ghee (Clifford G. Stewart, on the brief).
Daniel J. Zirrith, attorney for respondent
Probation Association of New Jersey.
Don Horowitz, Acting General Counsel,
attorney for respondent New Jersey Public
Employment Relations Commission (Christine
Lucarelli, Deputy General Counsel, on the
brief).
The opinion of the court was delivered by
ACCURSO, J.A.D.
The sole issue on this appeal is whether the Public
Employment Relations Commission (PERC) was correct, as a matter
of law, in determining that even were all the allegations of the
unfair practice charge filed by appellants Peter Tortoreto and
Robyn Ghee true, they concern only internal union disputes that
do not support even a potential violation of N.J.S.A. 34:13A-
5.4b(1), and thus are beyond the scope of PERC's jurisdiction.
Because our review convinces us that PERC has jurisdiction over
this dispute, we reverse.
The essential facts are easily summarized. Appellants are
probation officers employed by the judiciary and long-time
members of its union, the Probation Association of New Jersey
(PANJ). In the course of seeking statewide office in the union,
appellants published a piece of campaign literature entitled
"Secret Society of PANJ Finances" in which they alleged that
while union members were forced to accept an eighteen-month wage
freeze, the finance chairperson had given the union president
"enormous raises hidden in the budget process."
The piece was quite specific about the amounts the
president had received in salary, stipend and 401k contributions
for the years from 2008 through 2010, and alleged the president
"may retire with $250,000.00 of your dues in a 401(k)
accumulated over years." The piece was also critical of
legislative spending, the lack of scheduled finance committee
meetings and the legal billing by the union's counsel. With
regard to the legal billing, the piece alleged that the union
paid its outside counsel over six million dollars, and that
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"[m]ore than $400,000 per year was spent without detail by the
senior partner. In the January and February 2010 legal
billings, over $40,000 was spent for one lawyer and a single
supervisor from one county."
Appellants lost the election. Their successful opponents
thereafter requested that the union file disciplinary charges
against them concerning their conduct during the election
campaign. The union formed a disciplinary committee to hear
charges that appellants violated the union's by-laws by making
and disseminating false or misleading allegations against the
union and its officers and making false statements accusing
board members of dishonesty and of perpetuating mistrust of the
executive board, among other things.
When appellants' request for discovery and an adjournment
of the hearing was denied, they failed to appear. After hearing
the witnesses and reviewing documents, the committee recommended
that appellants be disciplined in absentia. Thereafter, the
Board voted to sustain most of the charges. The union suspended
Tortoreto and barred him from union-related activities for three
years and fined him $1000. The union suspended Ghee and barred
her from union activities for six months. It also relieved her
of her position as vice president of her local union. Both were
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allowed to apply to the union for reinstatement after their
suspensions.
Appellants thereafter filed an unfair practice charge
against the union with PERC alleging PANJ violated section
5.4b(1)1 of the New Jersey Employer-Employee Relations Act,
N.J.S.A. 34:13A-1 to -43 by bringing disciplinary charges
against them resulting in their suspension from the union.
PERC's Director of Unfair Practices "determined that the
allegations in the charge, if true, may constitute unfair
practices," and thus issued a complaint, limited to alleged
violations of section 5.4b(1), and set the matter down for a
hearing. See N.J.A.C. 19:14-2.1. The union answered and
immediately moved for summary judgment and a stay of the
proceedings pending resolution of its motion. The Hearing
Examiner granted the motion to stay the proceedings over
appellants' opposition and elected to hear the motion for
summary judgment.
PANJ's motion was not directed to the merits of the
complaint. Instead, PANJ argued PERC was without jurisdiction
1
This section prohibits employee organizations, their
representatives or agents from "[i]nterfering with, restraining
or coercing employees in the exercise of the rights guaranteed
to them by this act." N.J.S.A. 34:13A-5.4b(1).
4 A-2101-13T3
to adjudicate appellants' complaint "as it concerns solely an
intra-union dispute involving the discipline of two discordant
members who violated the Constitution and Bylaws of PANJ. The
Charging Parties have not alleged any facts that would enable
the Commission to exercise jurisdiction over their Complaint."
The Hearing Examiner agreed. She found "the undisputed
facts show that Charging Parties were suspended as members in
good standing for disseminating campaign literature and
pamphlets, particularly for the information contained therein,
during an internal union election." Noting the executive board
convened a disciplinary committee after receiving complaints "by
members who apparently believed the pamphlets contained damaging
and false information," that the committee held a hearing and
reviewed evidence before recommending the charging parties be
disciplined, and that other members had been disciplined in the
past, the Hearing Examiner concluded "[o]n its face this conduct
is not arbitrary, discriminatory or invidious."
The Hearing Examiner rejected appellants' argument that
their suspensions were arbitrary because the charges that they
had published false and misleading information in the "Secret
Society pamphlet" were themselves false. She determined that
"[i]t is irrelevant to this case whether Charging Parties'
pamphlets were the truth, partly true or untrue. That judgment
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is for those authorized within PANJ (or a court) to decide and
not for the Commission."
She likewise dismissed appellants' claims regarding the
allegedly improper composition of the disciplinary committee and
the alleged procedural irregularities in the disciplinary
process as internal union matters. She further noted that even
were appellants' accusations about "mismanagement and financial
malfeasance . . . true, any remedies thereto, such as audits and
the placement of 'holds' on accounts, are outside the
Commission's jurisdiction."
Finally, the Hearing Examiner concluded:
Charging Parties were suspended as members
in good standing and Tortoreto was fined.
Both were temporarily barred from
participating in union-related activities,
events and functions, including elections.
Ultimately, Charging Parties were
temporarily excluded – not expelled – from
PANJ. As of the filing date of the [summary
judgment] motion, Ghee's six-month
suspension has been completed, and she has
been reinstated and can participate in all
activities and functions, including
elections. Thus, Charging Parties have not
provided facts giving rise to an examination
of PANJ's internal membership matters
through the Commission's unfair practice
jurisdiction. See In the Matter of N.J.
State PBA and PBA Local 199 (Rinaldo),
P.E.R.C. No. 2011-83, 38 N.J.P.E.R. ¶ 8,
2011 N.J. PERC LEXIS 106 at 5-6 (2011).
The Hearing Examiner ultimately concluded that "even if all the
allegations were proven true they would amount to internal union
6 A-2101-13T3
disputes. None of the alleged facts support even a potential
violation of 5.4b(1) of the Act."
PERC affirmed the Hearing Examiner's dismissal of the
complaint in a written decision. Relying on its decision in
Rinaldo, the Commission found
the Charging Parties' exceptions relate to
allegations, that even if true, concern
internal union matters over which the
Commission does not have jurisdiction.
Additionally, we find that there is no
evidence that the conduct of PANJ was
arbitrary, discriminatory or in bad faith or
that the Charging Parties were expelled from
PANJ as a result of the discipline imposed
on them.
This appeal followed.
Although we ordinarily accord substantial deference to an
agency's interpretation of a statute the agency is charged with
enforcing, the Supreme Court has made clear that no deference is
required when "an agency's statutory interpretation is contrary
to the statutory language, or if the agency's interpretation
undermines the Legislature's intent." In re N.J. Turnpike Auth.
v. AFSCME, Council 73, 150 N.J. 331, 351 (1997). We conclude
that such is the case here, and that PERC's determination that
the unfair practice charge it issued concerns only internal
union matters over which the Commission does not have
jurisdiction is at odds with the guarantee of the Employer-
Employee Relations Act.
7 A-2101-13T3
Among the "comprehensive rights" afforded public employees
in the Employer-Employee Relations Act is to have and "be
protected in the exercise of, the right, freely and without fear
of penalty or reprisal, to form, join and assist any employee
organization." See N.J.S.A. 34:13A-5.3; In re Hunterdon Cnty.
Bd. of Chosen Freeholders, 116 N.J. 322, 327 (1989). In order
to maximize the protections provided public employees, the Act
imposes on employee organizations, as well as public employers,
the same prohibition against "[i]nterfering with, restraining or
coercing employees in the exercise of the rights guaranteed to
them" under the Act. N.J.S.A. 34A-5.4a(1) and 5.4b(1). The Act
charges PERC with the "exclusive power . . . to prevent anyone
from engaging in any unfair practice listed in" N.J.S.A. 34:13A-
5.4 a and b. N.J.S.A. 34:13A-5.4c.
PERC accepts as a "settled principle" that a union has
considerable latitude in governing itself, and that the
Commission "will not intercede in intra-union disputes
unconnected to allegations and proof that an unfair practice has
been committed." I/M/O Teamsters Local 331 and Howard Charles
McLaughlin, P.E.R.C. No. 2001-30, 27 N.J.P.E.R. ¶ 32,014, 2000
N.J. PERC LEXIS 85 at 5, 10 (2000). The Commission reviewed the
limits of its jurisdiction in disputes between a union and its
members in Rinaldo, explaining it was without power "to enforce
8 A-2101-13T3
union constitutions and by-laws[,] . . . referee or resolve
internal union disputes unconnected to allegations and proof
that an unfair practice has been committed[,] . . . [or] enforce
the New Jersey Constitution as opposed to the statutory rights
specifically granted by the New Jersey Employer-Employee
Relations Act." In re N.J. State PBA and PBA Local 199
(Rinaldo), P.E.R.C. No. 2011-83, 38 N.J.P.E.R. ¶ 8, 2011 N.J.
PERC LEXIS 106 at 5-6 (2011).
In contradistinction to all these broader
disputes, our unfair practice jurisdiction
over membership matters is statutorily
confined under the Act we administer to two
instances. The first instance is where a
majority representative violates its duty to
represent its members fairly in contract
negotiations and grievance processing,
N.J.S.A. 34:13A-5.3; OPEIU Local 153
(Johnstone), P.E.R.C. No. 84-60, 10
N.J.P.E.R. 12 (¶15007 1983). The second
instance is where a majority representative
arbitrarily, discriminatorily, or
invidiously excludes or expels a
negotiations unit employee seeking to
participate in majority representative
affairs affecting his or her employment
conditions. FOP Lodge 12 (Colasanti),
P.E.R.C. No. 90-65, 16 N.J.P.E.R. 126
(¶21049 1991); PBA Local 199 (Abdul-Haqq),
P.E.R.C. No. 81-14, 6 N.J.P.E.R. 384 (¶11198
1980).
[Id. at 5-6.]
Our focus is obviously on the latter instance in which a union
"arbitrarily, discriminatorily, or invidiously excludes or
9 A-2101-13T3
expels" a member seeking to participate in union affairs
affecting the member's working conditions.
The Hearing Examiner concluded that PERC was without
jurisdiction to consider the complaint issued by the Director of
Unfair Practices because appellants were "temporarily excluded —
not expelled" from PANJ, and "[t]hus, charging parties have not
provided facts giving rise to an examination of PANJ's internal
membership matters through the Commission's unfair practice
jurisdiction." The Commission affirmed, agreeing with the
Hearing Examiner "that the Charging Parties were not expelled
from PANJ and any alleged violations with respect to their
suspensions fall outside our unfair practice jurisdiction.
Rinaldo."
Neither Rinaldo, nor the decisions on which Rinaldo relies,
however, compel the conclusion that PERC's jurisdiction is
invoked only when a member is expelled or permanently excluded
from union membership. Moreover, the language of the Employer-
Employee Relations Act itself, which provides that "public
employees shall have, and shall be protected in the exercise of,
the right, freely and without fear of penalty or reprisal, to
form, join and assist any employee organization," nowhere
suggests that its protections could be so narrowly construed.
See N.J.S.A. 34:13A-5.3, -5.4b(1).
10 A-2101-13T3
Rinaldo involved the expulsion of a local PBA (Policemen's
Benevolent Association) president who instituted litigation
against other PBA members. At the time of his expulsion, his
PBA chapter represented the superior corrections officers.
Shortly after his expulsion, an FOP (Fraternal Order of Police)
lodge replaced his PBA local as the superior officers' majority
representative and Rinaldo became the FOP lodge's president.
PERC found Rinaldo was not entitled to relief because he
was not expelled by his "majority representative," and, even if
he had been, the action was not arbitrary because he was found
to have violated an organizational rule. Rinaldo, supra, 2011
N.J. PERC LEXIS 106 at 8-9. In extrapolating its understanding
of its unfair practice jurisdiction to Rinaldo, PERC relied on
two prior cases: PBA Local 199 (Abdul-Haqq), P.E.R.C. No. 81-14,
6 N.J.P.E.R. ¶ 11,198, 1980 N.J. PERC LEXIS 141 at 14 (1980), in
which it found an arbitrary rejection of an employee's
application to a union to be an unfair practice, and FOP Lodge
12 (Colasanti), P.E.R.C. No. 90-65, 16 N.J.P.E.R. ¶ 21,049 1990
N.J. PERC LEXIS 168 at 7 (1990), in which it found that an
arbitrary expulsion would be an unfair practice, although
finding the expulsions there not arbitrary.
In Abdul-Haqq, the charging party, a corrections officer,
was denied membership in his majority representative, Local 199.
11 A-2101-13T3
Abdul-Haqq, supra, 1980 N.J. PERC LEXIS at 4. Although he
suspected the union denied him membership based on a criminal
conviction and his subsequent incarceration many years before,
the union refused to give him any reason for denying him
membership. He claimed that Local 199 violated N.J.S.A. 34:13A-
5.4(b)(1) because it "interfered with, restrained and coerced
him" in the exercise of his right, pursuant to N.J.S.A. 34:13A-
5.3, to "form, join and assist any employee organization." Id.
at 4. He argued that his exclusion from membership constituted
an unfair practice because it deprived him of the opportunity to
speak at union meetings, attempt to influence the organization's
positions, vote for union officers and participate in other
aspects of the union which "directly or indirectly affect the
conditions of his employment." Id. at 8.
The union argued that PERC was without jurisdiction to hear
the charge as it involved a purely internal union matter and
that it had not violated section 5.4b(1), because there was no
showing that it had acted in an arbitrary, discriminatory or
invidious manner in denying the charging party membership in the
union. Ibid.
The Commission rejected the union's claim that it was
without jurisdiction to adjudicate the charge. It held that the
"plain language of the Act gives Charging Party a right not to
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be arbitrarily denied membership in the organization which
determines (albeit in conjunction with his employer) what
working conditions will be." Id. at 13. Thus, PERC concluded,
N.J.S.A. 34:13A-5.3 establishes a right to membership in an
employee's majority representative organization; and therefore,
in denying the charging party membership without providing any
explanation, Local 199 violated N.J.S.A. 34:13A-5.4(b)(1). Id.
at 13-14.
In Colasanti, the charging parties alleged that the FOP
violated section 5.4(b)(1) when it expelled them as a result of
their work on the part of the PBA, which was trying to replace
the FOP in a representation election. Colasanti, supra, 1990
N.J. PERC LEXIS 168 at 2. In rejecting the charging parties'
arguments, the Commission explained that the court in Calabrese
held that a union may expel "discordant elements in order that
harmony may prevail," Calabrese v. Policeman's Benevolent Ass'n,
Local No. 76, 157 N.J. Super. 139, 156 (Law Div. 1978), and that
"the standard for testing such expulsions is whether they were
arbitrary, capricious, or invidious." Colasanti, supra, 1990
N.J. PERC LEXIS at 6-7.
Relying on Calabrese, the Commission found that the
charging parties' efforts on behalf of a rival union violated
membership responsibilities and were disruptive of contractual
13 A-2101-13T3
relations because the parties were campaigning against the union
while remaining members with access to its strategy and tactics.
Ibid.; see Calabrese, supra, 157 N.J. Super. at 154.
There is no indication in these decisions that an employee
organization only "[i]nterfer[es] with, restrain[s] or coerc[es]
employees in the exercise" of their right to "form, join and
assist any employee organization" when the organization expels a
member or denies an employee's application for membership. Nor
is there anything explaining why only a permanent prohibition on
assisting an employee organization can be considered an
interference with an employee's rights under the Employer-
Employee Relations Act.2 The parties have not called to our
attention, and we have not found, any decision by PERC or any
state court that has drawn the distinction relied upon by the
Hearing Examiner and the Commission here - that PERC has unfair
practice jurisdiction to determine whether exclusions and
expulsions, but not suspensions, are arbitrary, discriminatory
or invidious.
N.J.S.A. 34:13A-5.4b(1) prohibits interference with a right
guaranteed by the Employer-Employee Relations Act, and the Act
2
Abdul-Haqq would actually suggest the opposite as the charging
party in that case was not prohibited from reapplying for
membership in the future. See Abdul-Hagg, 1980 N.J. PERC LEXIS
at 6.
14 A-2101-13T3
explicitly protects the right to "assist" in a labor
organization, N.J.S.A. 34:13A-5.3. Here, both Tortoreto and
Ghee were barred from participating in any union activities for
a significant period of time, at least six months, in which they
may have otherwise "assist[ed]" PANJ in affairs affecting their
employment conditions. See N.J.S.A. 34:13A-5.3; Rinaldo, supra,
2011 N.J. PERC LEXIS at 5-6. Tortoreto was suspended for three
years. He contends that his suspension "extend[s] beyond his
lawful retirement," a fact of which the union was aware when it
imposed the suspension.3 Although we agree with the Commission
that appellants' claims based on procedural irregularities in
the union's disciplinary proceedings are internal matters over
which the Commission lacks jurisdiction, we do not accept that
their substantive claims can go unaddressed by PERC, the agency
the Legislature charged with the "exclusive power . . . to
prevent anyone from engaging in any unfair practice" listed in
N.J.S.A. 34:13A-5.4a-b. N.J.S.A. 34:13A-5.2; N.J.S.A. 34:13A-
5.4c.
We express no opinion on the merits of appellants' claims
that they were arbitrarily and invidiously suspended by PANJ and
prohibited from participation in the union's affairs in
3
Tortoreto contends in the reply brief that the union has
"determined that the unit may not decide whether he can return
to membership until this case is over."
15 A-2101-13T3
retaliation for their truthful allegations of mismanagement and
fiscal irregularities in the course of their unsuccessful
election campaign. We hold only that PERC has jurisdiction to
consider the claim and that the allegations in the charge, if
true, may constitute unfair practices and not internal union
disputes that do not support even a potential violation of
N.J.S.A. 34:13A-5.4b(1).
Reversed and remanded for further proceedings consistent
with this opinion. We do not retain jurisdiction.
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