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NOT FOR PUBLICATION WITHOUT THE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

3 A-2101-13T3

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

12 A-2101-13T3

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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