April 30, 2008
TEAMSTERS LOCAL UNION NO. 177, PLAINTIFF-APPELLANT,
UNITED PARCEL SERVICE, INC., DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. C-147-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 7, 2008
Before Judges Stern, Collester and C.L. Miniman.
Teamsters Local Union No. 177 appeals from an order of June 7, 2007 granting the cross-motion of defendant United Parcel Service (UPS") "to inspect and release the files and records and the information contained therein" relating to the arrest of defendant's employee, F.M., on March 19, 2004. The released material had been expunged pursuant to a prior order of the court. See N.J.S.A. 2C:52-1 to -32. The June 7, 2007 order also permitted Essex County Prosecutor's Investigators John Gomes and Robert O'Neil to testify at an arbitration hearing being conducted "for the purpose of determining whether UPS had just cause to discharge [F.M.] on March 31, 2004."
In its verified petition, the Union challenged the subpoenas served on the investigators. It asserted that "the appearance and testimony of investigators of the Essex County Prosecutor's Office at the discharge arbitration proceeding [was] expressly barred by the Expungement Order."*fn1 In support of its cross-motion to release the expunged records and information, UPS produced the affidavit of its security supervisor Richard Smith. According to Smith:
2. On March 19, 2004, members of the Essex County Narcotics Task Force ("ECNTF"), including Investigator John Gomes and Robert O'Neal, informed UPS management that (a) it arrested [F.M.] on the corner of 6th Street and 11th Avenue in Newark, New Jersey; (b) they observed [him] distribute 13 bags of marijuana (weighing approximately one lb. each) to a cooperating witness; (c) [F.M.] distributed the marijuana from his UPS vehicle; and (d) it had been investigating [F.M.] for about one month based on information provided by a confidential informant.
3. On March 19, 2004, I went to the corner of 6th Street and 11th Avenue in Newark, New Jersey. When I arrived at the scene, the back of [F.M.]'s package car was open and the ECNTF investigators were inside the vehicle.
4. I observed and photographed the 13 bags of marijuana in a UPS driver release bag which was in a General Electric ("GE") box. These photos were taken outside the package car at the scene of the arrest.
5. UPS consented to a search of [F.M.]'s package car. I observed the ECNTF investigators place the 13 bags of marijuana inside the GE box and back inside the package car.
6. The ECNTF conducted a K9 search of [F.M.]'s delivery vehicle, and the dog repeatedly pawed the GE package. The K9 unit dog did not react to any other parcel in the vehicle.
7. I learned that [F.M.] was charged with possession of controlled dangerous substances ("CDS"), distribution of CDS, distribution of CDS within 1,000 feet of a school, conspiracy to distribute CDS, possession with intent to distribute CDS, and possession with intent to distribute CDS within 1,000 feet of a school. I obtained a copy of the Essex County Prosecutor's Office's arrest report dated March 19, 2004.
8. UPS held a hearing on March 31, 2004 in the presence of [F.M.] and his union representatives. [F.M.] told UPS management that the ECNTF investigators pulled him out of his delivery vehicle. At the conclusion of the meeting, UPS discharged [F.M.] for misappropriation of UPS equipment, proven dishonesty and violating the Company's drug and alcohol policy.
In releasing the records and information, the judge relied on Ulinsky v. Avignone, 148 N.J. Super. 250 (App. Div. 1977), and said:
So it seems to me that it's unfair, highly unfair and inequitable for the employer not to be able to prove everything they based their decision on. And this is really where I think the key to the -- At the time that they decided to take this adverse action Mr. [F.M.] for violation of company policies regarding dishonesty, regarding violation of the drug policy, regarding misappropriation of company property, they had a panoply of information.
─ eyewitness from their own employee. And that's fair game. That we know that they can bring out. And that will get them maybe to second base and to third. But do they get home with that. And that's because Smith had taken in information that he got from these two investigators about their observations of the employee and what happened before Smith got on the scene.
On this appeal, the Union argues that "the expungement statute and the expungement order clearly prohibit the disclosure of the underlying criminal record and testimony at the discharge arbitration hearing and no compelling reason exists to justify the disclosure authorized by the order . . ."
"Expunged records shall include complaints, warrants, arrests, commitments, processing records, fingerprints, photographs, index cards, 'rap sheets' and judicial docket records." N.J.S.A. 2C:52-1b. "Unless otherwise provided by law, if an order of expungement is granted, the arrest conviction and any proceedings related thereto shall be deemed not to have occurred, and the petitioner may answer any questions relating to their occurrence accordingly, except [in respects not relevant to this case]." N.J.S.A. 2C:52-27.
Accordingly, but for the June 7, 2007 order under review, the Prosecutor's investigators who conducted a surveillance of F.M.'s activities and arrested him could not be called to testify about those events, the reports of which resulted in UPS' decision to terminate F.M. However, according to the Union's "affidavit in support of order to show cause," "[t]he issue at arbitration is whether UPS had just cause to discharge [F.M.] at the time he was discharged."*fn2 The parties confirmed this fact at argument before us, and the Union acknowledged that the information UPS had in its possession at the time of discharge would be admissible.
N.J.S.A. 2C:52-19 provides:
Inspection of the files and records, or release of the information contained therein, which are the subject of an order of expungement, or sealing under prior law, may be permitted by the Superior Court upon motion for good cause shown and compelling need based on specific facts. The motion or any order granted pursuant thereto shall specify the person or persons to whom the records and information are to be shown and the purpose for which they are to be utilized. Leave to inspect shall be granted by the court only in those instances where the subject matter of the records of arrest of conviction is the object of litigation or judicial proceedings. Such records may not be inspected or utilized in any subsequent civil or criminal proceeding for the purposes of impeachment or otherwise but may be used for purposes of sentencing on a subsequent offense after guilt has been established.*fn3
We consider this case to be an aberration. Not only was the arbitration stayed by consent until the criminal matter was disposed, including through the entire period of diversion and supervision under the Pretrial Intervention Program and dismissal of the charges after completion of the program on March 14, 2006, but until after the expungement proceedings was completed on January 29, 2007. Thus UPS contends the order under review was necessary to permit it to present its case. It relies on Ulinsky v. Avignone, supra, for the proposition that F.M. cannot commence the arbitration but use the expungement to prevent the discharge because UPS relied upon the arrest and information provided by the officers before the expungement to take the action it did. See also State v. J.R.S., 398 N.J. Super. 1, 6 (App. Div. 2008).
The Union acknowledges that hearsay evidence is admissible in an arbitration, that the evidence in UPS' possession is "unaffected by the expungement," and that UPS can assert that what it did was based on the information supplied to it by the investigators as well as what Security Officer Smith observed when responding to the scene. Under the circumstances, the expunged records may not be required to sustain UPS' position, and the statutory expungement should be maintained because there would be no "good cause" or "compelling need" to release the information. However, we recognize that F.M. can now deny the fact he was even arrested much less prosecuted, and the Judiciary has never permitted a person to invoke even a constitutional right when preclusion of non-admissible evidence would permit untruthful testimony to remain unimpeached.*fn4 See, e.g., Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed. 2d 21 (1971) (defendant's statement inadmissible under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966) can be used to impeach his testimony at trial); Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954) (evidence suppressed under the Fourth Amendment can be used to impeach testifying defendant); State v. Miller, 67 N.J. 229, 233-34 (1975); State v. Davis, 67 N.J. 222, 226-28 (1975).
Accordingly, we modify the order under review and preclude the use of the expunged records and the testimony of the subpoenaed investigators unless F.M. testifies and presents a defense which disputes that he possessed marijuana on a UPS truck on the date of his arrest, and that he was arrested. As stated in Ulinsky and J.R.S., "the remedy of expungement was never intended as a device by which a plaintiff . . . could control the availability of evidence relevant [to the proceedings]." Ulinsky, supra, 148 N.J. Super. at 255.
The order under review is modified, and the matter is remanded for the arbitration.