Employer Has Right To Investigate Threats Made At Firefighters’ Union Meeting

In September 2014, a Hoboken, New Jersey fire captain filed a complaint with the Fire Chief. He alleged that, at two union meetings, two other fire captains harassed him and subjected him to a hostile work environment. The employer investigated the captain’s complaint. It ordered bargaining unit members who were present at the union meetings to submit written reports about the alleged threats.

Local 1076 of the International Association of Fire Fighters, which represents the captains, filed an unfair labor practice complaint with New Jersey’s Public Employment Relations Commission alleging that the employer’s investigation amounted to an illegal interference with the internal activities of a labor organization. An administrative law judge rejected the complaint.

The ALJ began by acknowledging that “the ability of union members to hold meetings is essential to their rights under the collective bargaining law to form, join or assist an employee organization. Their ability to freely discuss issues like negotiations or grievance strategies, and keep these confidential, is crucial to achieving consensus, developing goals and planning. Meetings also function as the forum for conducting union business. Denying the protection of free expression in union meetings diminishes the rights guaranteed by section 5.3, and chills employees’ participation in their organizations.

“Generally, employers may not trespass into internal union affairs and deliberations by questioning employees about interactions in union meetings. Moreover, having to report on co-workers generally intensifies interpersonal conflicts, inhibits communication and creates mistrust. For these reasons it is likely the City’s investigative method of requiring written reports of what was heard at the union meetings would have the tendency to chill employees’ willingness to express themselves freely in future union meetings. But that is not the end of the inquiry.

“The second consideration is whether the City’s business justification for its action was legitimate and substantial and outweighed the employees’ interests. Relevant here are the City’s responsibilities to maintain order and morale, ensure proper supervision and minimize conflict within the Fire Division.

“Here, the Department did not begin the investigation sua sponte; it was brought about because a captain filed a harassment/hostile work environment complaint against two other captains. The employer’s rules required the Chief to examine the charges carefully, conduct a thorough investigation and give an opinion as to whether the charges could be sustained by competent testimony and evidence. The captain alleged he had been threatened with physical abuse. Such threats would violate the City’s rules, especially the prohibition on conduct prejudicial to good order and discipline and abusive or threatening language.

“The first step the City took was to verify or confirm what Markey alleged. The City ordered those unit members who attended and may have seen or heard the threats Markey alleged to submit written reports. When those responses were vague, it more narrowly defined the inquiry to whether any officers overheard anyone asking three specific statements of anyone at the meetings. None of these questions touched on internal union business or substantive discussions. The investigation targeted the statements to discover whether any department rules were broken. The Union’s argument is unpersuasive and counter to the cases the Commission had previously decided.

“Further, under anti-discrimination laws the City has a duty to investigate the hostile work environment claims, even though the conduct occurred off duty. The City also had an interest in avoiding liability for discrimination. An employer has a legal obligation to conduct an investigation whenever an employee formally alleges he was harassed or subjected to a hostile work environment.”

City of Hoboken, 42 NJPER ¶ 115 (N.J. PERC ALJ 2016).