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International Federation of Professional and Technical Engineers, Afl-Cio, et al v. the New Jersey Turnpike Authority

April 21, 2011

INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, AFL-CIO, ET AL., PLAINTIFFS,
v.
THE NEW JERSEY TURNPIKE AUTHORITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Linares, District Judge.

NOT FOR PUBLICATION

LOCAL 194,

OPINION

This matter comes before the Court by way of Plaintiffs' application for a preliminary injunction, filed on March 24, 2011. Oral argument was held on April 6, 2011, and at its conclusion the Court granted the parties one week to submit supplementary briefing regarding certain questions raised by the Court. The Court has considered the arguments of counsel and the submissions of the parties in support of and in opposition to the present application, and for the reasons set forth below, Plaintiffs' Complaint will be dismissed, and Plaintiffs' application for a preliminary injunction will be denied as moot.

I. BACKGROUND

Plaintiff Local 194, International Federation of Professional and Technical Engineers, AFL-CIO ("Local 194") is a labor union that is party to a collective bargaining agreement with Defendant the New Jersey Turnpike Authority (the "NJTA"), a public agency within the New Jersey Department of Transportation. Local 194 represents full- and part-time toll collectors currently employed by the NJTA.

In March 2010, the Governor of New Jersey created the New Jersey Privatization Task Force (the "Task Force"). A few months later, the Task Force issued a report to the Governor identifying manual toll collection jobs within the NJTA as candidates for privatization. Approximately 300 full-time and 380 part-time NJTA toll collectors are currently represented by Local 194. On November 10, the NJTA informed Local 194 of its intent to pursue the Task Force's privatization recommendation, and on or about January 19, 2011, the NJTA issued a Request for Proposal for Toll Attendant Services (the "RFP") to be provided to potential bidders. The RFP contained the following "Right of First Refusal" provision:

As a result of this contract Toll Attendants that are currently employed by NJTA will be separated from employment. Additionally, due to Collective Bargaining Agreement language, Roadway Maintenance Personnel on the Parkway may also be separated from employment. The Contractor must give each employee separated from employment as a result of this contract with NJTA the right of first refusal to accept a Toll Attendant position under the contract. This includes all toll attendants covered under Local 194 & Local 196 collective bargaining agreements . . . . (Br. in Supp. of Pls.' Order to Show Cause and Prelim. Inj., Certif. of Franceline Ehret ("Ehret Certif."), Ex. H.)

During the period of time leading up to the issuance of the RFP and continuing thereafter, members of Local 194 attended public meetings held by the NJTA and voiced their opposition to the privatization plan. Local 194's President, Plaintiff Franceline Ehret, expressed concern that the plan would cause union members to lose their jobs and that privatization would both weaken security along the heavily traveled turnpike corridor and impair the State's ability to respond to snow and ice events. On February 7, the NJTA held a mandatory pre-proposal meeting, which was attended by approximately twenty-three potential bidders, along with approximately sixty picketing union members. The following day, Ehret sent a letter to the members of Local 194 urging them to attend the next NJTA Board of Commissioners meeting, which was to be held on February 23. Ehret's letter further urged Local 194 members to create resumes and cover letters, which the union would then forward to the potential bidders. Ehret's letter stated that many bidders "WILL NOT want to come here when they see all the UNION MEMBERS who want these jobs." (Ehret Certif., Ex. J.) On February 18, Local 194 gathered the resumes and cover letters and submitted them to the potential bidders.

On February 22, 2011, bidders began notifying the NJTA that they had received numerous resumes and cover letters from and that as a result they would not submit a response to the RFP. At oral argument, counsel for Defendants stated that three potential bidders, each of whom had attended the mandatory pre-proposal meeting on February 7, advised the NJTA that they would not be submitting bids, and that two other companies "submitted withdrawals." (Tr. of Proceedings, Apr. 6, 2011 ("Hr'g Tr."), 51:7--19, 52:12--19.)

On February 25, the NJTA issued an addendum to the RFP that removed the union members' Right of First Refusal. The addendum revised the RFP to state that every toll collector would be given an "equal opportunity" for employment with the winning contractor. (Defs.' Br. in Opp'n to Pls.' Appl. for Prelim. Inj. Relief at 7.) The Right of First Refusal was removed as to both Local 194 and Local 196, another labor union subject to a collective bargaining agreement with the NJTA. Local 196 is not a party to this action. The amended RFP indicates that the closing date for submission of proposals was March 14, 2011. (Decl. of Veronique Hakim ("Hakim Decl."), Ex. E.) At oral argument, counsel for Defendants stated that, of the twenty-three companies that had attended the mandatory pre-proposal meeting, only four had submitted bids. (Hr'g Tr. 51:24--55:11.)

On March 15, 2011, Local 196 filed an "Unfair Practice Charge" with the New Jersey Public Employment Relations Commission ("PERC") against the NJTA. The charge alleges violations of the New Jersey Employer-Employee Relations Act, N.J. Stat. Ann. § 34:13A-1 et seq., claiming that the NJTA's removal of the Right of First Refusal was made "in retaliation for [the union's] protected activity." (Hakim Decl., Ex. N.)

On March 24, Plaintiffs filed the instant federal action asserting claims under 42 U.S.C. § 1983 and state law. Their Complaint alleges that the NJTA retaliated against Local 194 and its members as a result of their engaging in conduct protected under the First Amendment and under analogous provisions of the New Jersey Constitution. On March 25, this Court issued an Order to Show Cause why a preliminary injunction should not issue to restrain the NJTA from awarding the toll collection contract without the Right of First Refusal, setting oral argument for April 6. (Docket Entry No. 2.)

On March 30, the NJTA filed a "Scope of Negotiations Petition and Unfair Practice Charge" with PERC against Local 194. (Hakim Decl., Ex. O.) The NJTA seeks "(1) a determination that the decision to subcontract the toll collectors' work is not mandatorily negotiable, and (2) issuance of unfair practice Complaint alleging the Union has violated the New Jersey Employer- Employee Relations Act . . . ...


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