The opinion of the court was delivered by STERN, P.J.A.D.
In these appeals, consolidated for purposes of this opinion, the County of Morris appeals from orders of the Public Employment Relations Commission (PERC) based on conclusions that the County committed an unfair labor practice by declining to disclose employee home addresses to the Morris Council No. 6 (NJCSA, IFPTE— AFL/CIO) and to the Communications Workers of America (CWA), when those employees were members of the respective "collective bargaining" or "collective negotiation" units.
On both appeals the County argues that (1) "mandatory disclosure of records containing home addresses would unduly infringe upon the County's constitutional authority to reasonably regulate access to its property," (2) "PERC committed legal error in its decision below in that it ignored United States Supreme Court precedent, ignored New Jersey Supreme Court precedent, and failed to give adequate consideration to the individual's privacy right to maintain the confidentiality and to control the dissemination of his or her home address," and (3) "PERC's finding that the County has refused to negotiate in good faith lacks any basis in the record evidence." In the Council 6 appeal, the County also argues that PERC relied upon improper and inadmissible evidence and
The County argues that the employees' privacy interests in maintaining the confidentiality of their home addresses, and in determining who may or may not have access, "overrides any alleged interest that a union organization may have in obtaining home addresses without employee consent." It challenges the Commission's decision to the contrary and argues that the Commission was wrong in sustaining the unfair practice charge complaints.
Although we have a sincere concern about the right of unit members to decide for themselves whether they want to have their addresses given to the union, we affirm the orders entered in these cases because the record reflects no suggestion that either union would harass or otherwise annoy members with unwanted mail or disseminate the addresses to any third party. Moreover, nothing in the record suggests that members of the negotiations unit actually object to the request. While there have been numerous cases decided since our unreported opinion affirming PERC's similar holding in 1988, In re Burlington County, 14 NJPER 327 (¶ 19121 1988), aff'd, NJPER Supp.2d 208 (¶ 183 1989) (App.Div. No. 4698-87T1), none have disapproved of the PERC ruling we sustained therein,
Council No. 6 represents about 500 "white collar and blue collar" county employees in the bargaining unit involved in this case. The union communicates with its members mainly through the County's interoffice mail system. However, according to the union president, there had been perceived "[s]erious problems" with the "confidentiality" of items sent through that system. There were complaints that some outside "mail had been opened and read" before delivery and arrived with a notation written on the envelope that it had been opened by "mistake." The union's monthly newsletter, often containing time-sensitive material, would be delivered through interoffice mail a week or two late.
Telephone communication was ineffective, as the employee sometimes was not available or out of the office. Employees were reluctant to discuss confidential union matters on the phone at work. Monthly union meetings likewise were unsatisfactory vehicles, as giving notice was difficult. An average attendance was about fifteen to twenty members, and the union did not have the e-mail addresses of unit members.
At some time in 1999, the union filed a set of grievances on behalf of employees seeking salary adjustments because of pay inequities. The grievances were resolved by negotiations, and the union asked for their members' home addresses so that it could notify the employees of salary adjustments they would receive and let them know "that the union was working for them." According to its president, the County refused to supply the addresses, but invited the union to draft letters to the affected employees, which letters would be reviewed by the County Administrator and e-mailed to the employees' homes. On August 12, 1999, the union faxed the draft letters to the County Administrator. The union president testified that, to the best of her knowledge, the County Administrator
By letter dated August 13, 1999, the union wrote the County as follows:
By letter dated September 22, 1999, counsel for the County declined to provide the home addresses on the ground that the county was "legally barred" by Executive Order No. 11, issued by Governor Brendan Byrne in 1974, from disclosing personnel records of employees. As an "alternative," counsel noted that "the County is prepared to negotiate allowing Council No. 6 access to the County's internal mail system for the purpose of communicating with bargaining unit members." The union did not respond to or accept this offer.
Among the members of the negotiations unit in question were about thirty juvenile detention officers, whose duties included supervising juveniles committed by a court to a detention center. The unit also included about thirty clerical workers in the prosecutor's office. The prosecutor's office has a rule prohibiting the release of home addresses of its employees because of their involvement in criminal investigations. Another group in the unit consisted of thirty to fifty employees of the county's Department of Human Services, some of whom investigate criminal activity in the provision of county services, and some of whom work with State and law enforcement agencies in connection with domestic violence, child abuse and abuse of the elderly.
The CWA is the majority representative of the County employees assigned to the Office of Temporary Assistance. In the CWA case, the union's request for a list of home addresses was also rejected. In that case, also commenced by the union's unfair practice charge alleging violation of the Act, the parties entered into a Stipulation of Facts. The stipulation included the following:
The County argues that a public body has the "constitutional authority to reasonably regulate access to its property." It contends that "[a]ccess to a non-traditional public forum can be restricted by the government so long as the restriction is reasonable," and that its records of employees' home addresses "are not considered a traditional public forum." Thus, it contends that it was constitutionally permitted to regulate access to those records, and that regulation was reasonable by virtue of various Executive Orders issued by New Jersey governors barring disclosure of personnel records such as home addresses. The unions suggest that the most recent Executive Order, No. 26 of 2002, supports their position.
The unions do not argue that the home addresses are public records under the Right to Know Law, as amended in 2001 by the Open Public Records Act, N.J.S.A. 47:1A-1 through -13. See N.J.S.A. 47:1A-10 (personnel records "shall not be considered a government record" except as specifically provided therein).
We agree with PERC that the Executive Orders are not germane in the special labor-law context presented here.
With respect to its "constitutional authority," the County relies on United States Supreme Court cases in which the Court acknowledged, in varying contexts, that the government may reasonably control access to property and information that is not a traditional forum for free speech without showing a compelling governmental interest, so long as the government's motive is not to suppress expression of views with which it disagrees. Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 804-808, 105 S.Ct. 3439, 3450-52, 87 L.Ed.2d 567, 581-84 (1985) (upholding presidential executive order prohibiting legal-defense and political-advocacy groups from participating in annual combined federal campaign charity drive conducted in federal offices during the work day); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46-48, 103 S.Ct. 948, 955-56, 74 L.Ed.2d 794, 805-07 (1983) (school district's internal mail not public forum; collective bargaining agreement's prohibition on use of interoffice mail by any union other than the one then representing teaching staff upheld); United States Postal Service v. Greenburgh Civic Ass'n, 453 U.S. 114, 132-33, 101 S.Ct. 2676, 2687, 69 L.Ed.2d 517, 532-33 (1981) (upholding statute prohibiting deposit of unstamped materials in residential mailboxes).
However, those cases do not involve requests for disclosure of employee information to their collective bargaining representative,
The County nevertheless argues that PERC wrongly analyzed the facts of this case under governing federal and New Jersey labor law. It claims PERC inappropriately weighed the competing interests, giving too much weight to the unions' need for the addresses and too little weight to the employees' privacy rights; PERC's finding that respondents had experienced problems in communicating with employees was based on hearsay; PERC undervalued the special privacy interests of two groups of employees, the juvenile detention officers and prosecutor's office employees; and PERC's finding that the County had refused to negotiate in good faith lacked support in the record.
The Act prohibits a public employer 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-5.4a(1). The Act also bars an employer from "[r]efusing 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." N.J.S.A. 34:13A-5.4a(5). An employer who violates either provision commits an "unfair practice."
We have found no published New Jersey case in which the Judiciary has considered whether an employer's refusal to provide a union with member-employees' home addresses can constitute an unfair labor practice under the Act. In interpreting the unfair practice sections of the Act, however, our Supreme Court has looked for guidance in the federal courts' construction of the cognate provisions of the National Labor Relations Act, 29 U.S.C.A. 158(a)(1) & (5) (defining "unfair labor practice" in terms similar to those used in New Jersey's law). Galloway Tp. Bd. of Educ. v. Galloway Tp. Ass'n of Educ. Secretaries, 78 N.J. 1, 9, 393 A.2d 207 (1978). Significantly with respect to this case, our Supreme Court has admonished us "to look to the Act's federal analogue [which] is particularly appropriate with respect to the interpretation of the unfair practice provisions of N.J.S.A. 34:13A-5.4, as these parallel the unfair practice provisions of the LMRA in many respects." Ibid. As Justice Pashman pointed out, the federal statute authorizes the National Labor Relations Board ("NLRB") to adjudicate unfair labor practice charges, as does N.J.S.A. 34:13A-5.4, and precedent respecting NLRB decisions is therefore relevant under our law. See also Troy v. Rutgers, 168 N.J. 354, 373, n. 3, 774 A.2d 476 (2001); Ridgefield Park Ed. Ass'n v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 159, n. 2, 393 A.2d 278 (1978) ("since the unfair practice provisions of N.J.S.A. 34:13A-5.4 closely parallel those of the Labor Management Relations Act, 29 U.S.C. § 158 and § 160, the federal precedents
The federal courts uniformly recognize that, in order to satisfy its obligations to bargain in good faith and to permit employees to exercise their bargaining rights, an employer in the private sector must furnish to a union any information that is needed for and relevant to the union's obligation to represent the employees. N.L.R.B. v. Acme Industrial Co., 385 U.S. 432, 435-36, 87 S.Ct. 565, 567-68, 17 L.Ed.2d 495, 499 (1967); N.L.R.B. v. CJC Holdings, Inc., 97 F.3d 114, 117 (5th Cir. 1996). This principle has been extended to the home addresses of unit members. See Prudential Ins. Co. of America v. N.L.R.B., 412 F.2d 77 (2d Cir.), cert. denied, 396 U.S. 928, 90 S.Ct. 263, 24 L.Ed.2d 226 (1969).
In Prudential, the union asked for a list of names and addresses of employees in the bargaining unit, who worked in district offices in thirty-four states. Id. at 79. Applying the "necessary and relevant" standard of Acme Industrial, supra, the court held that Prudential was bound to supply the requested data. Id. at 81-85. The "necessity" element was satisfied because none of the other suggested means of communication (bulletin boards, grievance committees, hand distribution of messages, or union meetings) was an effective way for the union to reach all the targeted employees. Id. at 81-83. In addition, the addresses were "relevant" to the union's statutory duty of representation:
[Id. at 84.]
The Prudential court also noted that, while a union must make a "special showing of pertinence" that some kinds of information are relevant to its bargaining function, home addresses so directly touch on the union's duty to represent that the union need not make a specific showing of "relevance" with respect thereto. Ibid. As Judge Irving R. Kaufman stated (albeit over the dissent of Judge Henry J. Friendly):
The court further observed that:
[Id. at 85.]
Similarly, in CJC Holdings, supra, 97 F.3d at 115, a union asked the employer for a list of all employees, their addresses and other data. One reason for the request was that over sixty copies of the union's newsletter had been returned by the post office "because of incorrect addresses." Ibid. The NLRB entered an order directing the employer to provide the names and addresses. Id. at 116. In enforcing the NLRB's order, the Court of Appeals for the Fifth Circuit adopted the rationale of Prudential, to the effect that addresses of employees are fundamental to a union's duty of representation. Id. at 117. It rejected the employer's claim that the union could communicate through other means, and deemed it inconsequential that the union might use the addresses to solicit employees for a legal action against the employer. Id. at 117-18.
In In re Burlington County, supra, a public employees' union filed an unfair practice charge against a county that had refused its request for "names and home addresses of representation fee payers" (employees who are not members of the union but who pay a percentage of membership dues in order to be represented by the union). 14 NJPER at 328. PERC found that the County had committed an unfair practice because, after balancing the interests, there was "no indication the union will use the information for any improper purpose" and "the intrusion on the employees privacy is minimal" while protecting their constitutional right to information. Id. at 329. In an unpublished opinion, we found that the record supported PERC's findings and its order was not "arbitrary or capricious." In that case PERC quoted from Prudential, supra, 412 F.2d at 84, and concluded:
PERC relies on the federal precedent and on its earlier decision in Burlington County. Although the federal cases deal with private sector employment, we find no basis for disturbing PERC's application of the precedent in this setting, and, because of the aforementioned relevance of the NLRB precedent, adhere to the same approach as we took in the Burlington County case. See In re Bridgewater Tp., 95 N.J. 235, 244-45, 471 A.2d 1 (1984). This is particularly true because of differences in the state and federal legislation with respect to access to information concerning public sector employees.
In Department of Defense v. FLRA, two unions representing federal civil service employees requested home addresses of all Department of Defense ("DOD") employees in the pertinent bargaining units and filed unfair labor practice charges when they were denied. The unions alleged that the addresses were necessary to their duties under the federal labor laws. Id. The Court held, however, that disclosure was prohibited by the federal Privacy Act of 1974, 5 U.S.C.A. § 552a, which applies to federal agencies, and bars disclosure of any personal data that would not be accessible under the Freedom of Information Act, 5 U.S.C.A. § 552 ("FOIA"). Id. at 510 U.S. at 493-502, 114 S.Ct. at 1011-1016, 127 L. Ed.2d at 333-38. The Court reasoned that the addresses would not be obtainable under the balancing test required by the FOIA, because the negligible public interest in disclosure would not outweigh the employees' substantial interest in keeping their home addresses private. FLRA, supra, 510 U.S. at 500-02, 114 S.Ct. at 1015-16, 127 L. Ed.2d at 337-38. See also id., 510 U.S. at 504, 114 S.Ct. at 1017, 127 L.Ed.2d at 340 (Ginsburg, J. concurring). The Court noted, however, that "[t]o the extent that this prohibition leaves public sector unions in a position different from that of their private sector counterparts [who are not protected by the Privacy Act], Congress may correct the disparity." Id., 510 U.S. at 503, 114 S.Ct. at 1016-17, 127 L.Ed.2d at 339. See also id., 510 U.S. at 504, 114 S.Ct. at 1017, 127 L. Ed.2d at 340 (Souter, J. concurring) (case "does not ultimately resolve the relationship between the Federal Service Labor-Management Relations Statute (Labor Statute) and all of the Privacy Act of 1974 exceptions potentially available...."); Sheet Metal Workers Int'l Ass'n v. U.S. Dept. Vet. Affairs, 135 F.3d 891 (3d Cir. 1998).
As PERC concluded, however, this case is distinguishable from the Department of Defense case in the absence of a New Jersey statute that expressly protects the kind of information requested by the union. Moreover, the issue before us deals only with the provision of information to the unions. Our reasoning does not depend on statutes that relate to the general public's access to information, and our conclusion in this case does not compel such access. We reject the County's suggestion that Doe v. Poritz, 142 N.J. 1, 77-91, 662 A.2d 367 (1995), upholding public disclosure of personal information about sex offenders under Megan's Law, supports a position contrary to our holding.
The County contends that PERC in the Council 6 case undervalued the "special privacy interest" of employees of the county prosecutor's office and juvenile detention officers. It argues that these employees, even those not directly involved in criminal investigations, might be subject to threats or harm by criminals or suspects, and, therefore, have a heightened need for confidentiality of their home addresses. However, the record does not suggest a realistic concern of any danger that would be posed with respect to the prosecutor's clerical employees, or how the addresses would become known to juvenile offenders or criminals after delivery of the information to the union. We find no basis for disturbing PERC's conclusion that "there is no likely danger that the majority representative will use the home addresses to harass or retaliate against employees," or divulge them to criminals or juvenile detainees.
In its September 22, 1999 letter, the County offered to negotiate over a means of communication, not about supplying the home addresses, and while the County's argument has some appeal, in these circumstances, we cannot disturb the finding. In any event, an unfair labor practice occurred at the moment the County refused to supply the addresses.
This is the very type of issue that the Legislature entrusted to PERC for initial resolution, and we cannot point to any statute or case law on which to conclude it is legally wrong. In essence, this case is controlled by our limited scope of review. We cannot disturb the ultimate determination of an agency unless it has been shown that such determination was arbitrary, capricious or unreasonable, that it lacked fair support in the evidence, or that it violated legislative policies expressed or implied in the act governing the agency. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562, 189 A.2d 712 (1963); In re Failure by Dept. of Banking, 336 N.J.Super. 253, 263, 764 A.2d 494 (App. Div.2001).
We must give substantial deference to PERC's findings and conclusions in unfair practice cases, Matter of Bd. of Chosen Freeholders, 116 N.J. 322, 328, 561 A.2d 597 (1989), and "be both sensitive and circumspect" in our review because PERC has been invested "with broad authority and wide discretion in a highly specialized area of public life." Id. It has the "expertise and knowledge of circumstances and dynamics that are typical or unique" to public sector employer-employee relations. Id. Its conclusions based on those findings should be upheld so long as they are not arbitrary and even if we would have reached a different result on the record made. In re Bridgewater Tp., supra, 95 N.J. at 245-46, 471 A.2d 1.
As the Supreme Court has said:
[Matter of Bd. of Chosen Freeholders, supra, 116 N.J. at 328, 561 A.2d 597.]
[Id. at 329, 471 A.2d 1.]
In this case the record reflects no objections to disclosure by unit members or County employees, no reasonable basis for a fear of harassment or disclosure of the list to third parties or any special confidentiality considerations that would outweigh the unions' fundamental need for the home addresses, a need created by its statutory obligation to represent unit employees. Accordingly, the unions are entitled to the home addresses of their members and the employees within the negotiations unit.
The orders of PERC are affirmed.