‘Disrespectful Speech’ May Be Protected By Labor Laws

The Borough of Carteret, New Jersey and Local 47 of the Police Benevolent Association are parties to a collective bargaining agreement. Salvatore Renda is the president of Local 47.

On October 21, 2010, there was a public meeting of the Borough Council. Individuals intending to speak at the meeting were asked to list their names on a sign-up sheet. They were reminded by the Mayor that they would have three minutes to speak and that if they chose to ask questions, responses to those questions would count toward their three-minute allotment. Renda and several other State PBA and Local 47 union representatives attended the public portion of the meeting in order to address ongoing union matters. Renda was not on duty and was not in uniform.

After four other union-affiliated individuals spoke during the public portion of the meeting, Renda’s name was reached on the sign-up sheet. Renda began by making a statement about the Attorney General guidelines concerning disciplinary hearings and internal investigations. When the Mayor interrupted Renda’s statement by commenting, “I – I can’ t dispute that…”, a heated exchange ensued during which Renda specifically told the Mayor that he did not want him to answer any question(s). However, the Mayor proceeded to interrupt Renda again twice before Renda asked, “…do I get extra time to talk?” When the Mayor indicated that additional time would not be allotted, Renda told the Mayor to “please shut up.”

Throughout the balance of Renda’s allotted time, a relatively heated exchange continued with the Mayor and Renda interrupting each other repeatedly. Renda advised the Mayor not to interrupt him at least twice. Later, when the Mayor clarified that Renda could either ask a question and receive an answer or simply make a statement, Renda specified, “I’ll make a statement.” Immediately thereafter, the Mayor proceeded to interrupt Renda approximately eight times, to which Renda ultimately responded by saying, “You’re a joke.”

The City later served Renda with a preliminary notice of disciplinary action charging him with insubordination and conduct unbecoming a public employee. The notice also indicated that a suspension or termination were the penalties being considered. Local 47 responded by filing an unfair labor practice complaint against the City.

New Jersey’s Public Employment Relations Commission held that Renda’s comments were protected speech and that he could not be disciplined for making them. The Commission found that New Jersey Law “guarantees all public employees the right to engage in union activity including organizing, making their concerns known to their employer, and negotiating collectively. It further provides that a majority representative of public employees shall be entitled to act for and represent the interest of public employees.

“When an employee is engaged in protected activity the employee and the employer are equals advocating respective positions, one is not the subordinate of the other. If either acts in an inappropriate manner or advocates positions which the other finds irresponsible, criticism may be appropriate and even legal action, as threatened here, may be initiated to halt or remedy the others actions. However, as in this case, where the employee’s conduct as a representative is unrelated to his or her performance as an employee, the employer cannot express its dissatisfaction by exercising its power over the individual’s employment.

“Here, Renda was off duty and acting as a union representative during the public meeting in which his comments were made. The substance of his commentary was union-related and directed at an elected official who was not within his direct chain of command. Although Renda uttered two inappropriate and disrespectful remarks during the course of his commentary, his comments must be considered in the totality of his exchange with the Mayor. Moreover, the Mayor contributed to the exchange by repeatedly interrupting Renda after he specified that he did not want answers to his questions and simply wanted to make a statement.

“Renda’s comments did not indefensibly threaten workplace discipline, order and/or respect and therefore he did not forfeit the statutory protection afforded under the law.”

Borough of Carteret, 42 NJPER ¶ 66 (N.J. PERC 2015).