P.E.R.C. No. 2001-1, PBA Loc 152/NJSPBA

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of PBA LOCAL 152 and NEW JERSEY STATE PBA, Respondent, -and- Docket No. CI-H-99-55 KENNETH SMITH, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Zazzali, Zazzali, Fagella & Nowak, attorneys (Paul L. Kleinbaum, of counsel) ¶

For the Charging Party, Kenneth C. Smith, pro se ¶

DECISION ¶

On February 1, 1999, Kenneth C. Smith filed an unfair practice charge against PBA Local 152 and the New Jersey State PBA. The charge alleges that the respondents violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., specifically 5.4b(1) and (5), 1/ by retaliating against Smith by filing three internal disciplinary charges against him on May 28, 1998; wrongfully finding him guilty on July 21, 1998; wrongfully denying him an appeal; and violating a previous Commission order. ¶

Note1/ These provisions prohibit employee organizations, their representatives or agents from: "(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act. (5) Violating any of the rules and regulations established by the commission." ¶

On October 14, 1999, a Complaint and Notice of Hearing issued. The respondents filed an Answer denying that they violated the Act and asserting, in part, that the charge is untimely. ¶

On January 3, 2000, the respondents moved for summary judgment. On February 16, the charging party filed a response. ¶

On May 15, 2000, Hearing Examiner Arnold H. Zudick granted summary judgment with respect to the allegations in the Complaint concerning the May 28, 1998 internal disciplinary charges and the PBA's July 21, 1998 decision regarding those charges. H.E. No. 2000-11, 26 NJPER 255 (¶31100 2000). He found that those allegations were untimely because they referred to events more than six months before the unfair practice charge was filed. He denied the motion with respect to the September 8 and October 13, 1998 refusals to conduct an appeal hearing; and the disciplinary charges resulting from an October 13, 1998 verbal altercation. ¶

On May 30, 2000, the charging party requested special permission to appeal. He claims that due to the requirement of exhausting all internal union remedies, his claim could not be filed on time. He also claims that he is representing himself and is ignorant of certain procedural matters. ¶

On June 5, 2000, the respondents filed a response asserting that the request was untimely and did not raise any extraordinary circumstances warranting interlocutory review. ¶

On June 22, 2000, the Chair granted special permission to appeal and issued a stay of further proceedings pending Commission review. ¶

The PBA brought internal union disciplinary charges against Smith. He was fined and suspended from the PBA for 30 days. He filed a timely internal union appeal, but arrived 15 minutes late and his appeal hearing was postponed and rescheduled. Three weeks before the next hearing date, Smith was notified that he had to pay the fine before his appeal would be heard. When he arrived at the union appeal hearing, he was advised that his appeal would not be heard because he had not paid the fine. A verbal altercation ensued and the appeal was not heard. New internal union disciplinary charges were brought as a result of the altercation and Smith was expelled from the PBA. He then filed this unfair practice charge. ¶

The unfair practice charge was filed more than six months after Smith was charged by the PBA, fined and suspended from the union. The Hearing Examiner dismissed these allegations as untimely. We now reinstate them. ¶

The duty of fair representation exists because it is the policy of our Act to allow a single labor organization to represent collectively the interests of all employees within a negotiations unit, thereby depriving employees in the unit of the ability to negotiate individually or to select a minority union as their representative. See D'Arrigo v. State Bd. of Mediation, 119 ¶

N.J. 74 (1990); Lullo v. IAFF, 55 N.J. 409 (1970); see also Vaca v. Sipes, 386 U.S . 171 (1967). With such exclusive and collective authority comes a responsibility to the individuals whose negotiations rights are correspondingly limited. A breach of the duty of fair representation occurs when a union's representational conduct toward a unit member is "arbitrary, discriminatory, or in bad faith." Belen v. Woodbridge Tp. Bd. of Ed. and Woodbridge Fed. of Teachers , 142 N.J. Super. 486 (App. Div. 1976). ¶

In Clayton v. UAW, 451 U.S . 679 (1981), the Supreme Court addressed the relationship between the policies requiring that a judicial forum be available to enforce the duty of fair representation and the conflicting national labor policy of encouraging nonjudicial resolution of labor disputes. The Court held that, in most cases, exhaustion of internal union remedies should be required before a suit alleging a breach of the duty of fair representation will be permitted. Such a policy affords a union the opportunity to resolve internal union dispute. But where internal union remedies would be futile, it would be unfair to the employee to require exhaustion. ¶

As in our unfair practice litigation, employees in the private sector have six months to file a duty of fair representation case in court or before the National Labor Relations Board. DelCostello v. Teamsters, 462 U.S. 151 (1983). ¶

The Seventh Circuit Court of Appeals has addressed the relationship between that six month statute of limitations and the obligation to exhaust internal union remedies. Frandsen v. Brotherhood of Railway, Airline, and Steamship Clerks, Freight Handlers, Express and Station Employees , 782 F.2d 674, 121 LRRM 2465 (1986). The Court stated: ¶

Clayton and DelCostello , read together, envisage the following scheme: an employee seeking to vindicate his right to fair representation has six months from the date of his injury to file suit in federal court. At the same time, however, he must pursue internal union procedures that possibly may provide him with a remedy. Thus, during the pendency of those union procedures, the six-month statute of limitations is tolled, to commence running only when the union procedures are exhausted. [782 F.2d at 681] ¶

Accord Volkman v. United Transp. Union, 73 F.3d 1047 (10th Cir. 1996); Robinson v. Central Brass Mfg. Co., 987 F.2d 1235 (6th Cir. 1993); see also Ghartey v. St. John's Queens Hosp, 869 F .2d 160, 130 LRRM 2816 (2d Cir. 1989); Legutko v, Local 816, IBT , 853 F.2d 1046, 128 LRRM 3228 (2d Cir. 1988); Adkins v. Electrical Workers (IUE), 769 F.2d 330, 119 LRRM 3594 (6th Cir. 1985). We need not decide all aspects of Clayton 's application to New Jersey's public sector or to any possible difference between unfair practice charges and court suits. Under the circumstances of this case, we adopt the Frandsen approach and hold that where Smith attempted to resolve his dispute with his union through internal union procedures, the statute of limitations should be tolled for the period he was pursuing his internal union appeal. Smith may litigate his claims that the May 28, 1998 internal union disciplinary charges and the July 21, 1998 decision and penalties violated the Act. We express no opinion on the merits of the allegations. ¶

OrderORDER ¶

The allegations in the Complaint regarding the May 28, 1998 internal union disciplinary charges and the July 21, 1998 decision are reinstated. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners Buchanan, McGlynn, Muscato, Ricci and Sandman voted in favor of this decision. None opposed. Commissioner Madonna abstained from consideration. ¶

DATED: July 20, 2000 ¶

Trenton, New Jersey ¶

ISSUED: July 21, 2000 ¶