P.E.R.C. No. 2001-48, NJ Transit

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of AMALGAMATED TRANSIT UNION, LOCAL 880 and NEW JERSEY TRANSIT, Respondents, -and- Docket No. CI-H-99-66 JOSEPHINE CARROLL, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, ATU, Weitzman & Weitzman, attorneys (Richard P. Weitzman, of counsel) ¶

For the Charging Party, Holston, MacDonald, Uzdavinis & Ziegler, attorneys (William F. Ziegler, of counsel) ¶

DECISION ¶

On April 5, 1999, Josephine Carroll filed an unfair practice charge against Amalgamated Transit Union, Local 880 (ATU) and New Jersey Transit. 1/ On July 6, Carroll amended her charge against ATU. The charge, as amended, alleges that ATU violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq ., specifically 5.4b(1), (3) and (5),2/ when it breached ¶

Note1/ Carroll's employer was actually New Jersey Transit Bus Operations (NJTBO), a subsidiary of New Jersey Transit. ¶

2/ 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. (3) Refusing to ¶

Footnote Continued on Next Page ¶

its duty of fair representation by failing to pursue Carroll's claim for reinstatement as a ticket agent at NJTBO following her October 5, 1998 acquittal on criminal charges of official misconduct and theft. The amended charge also alleges that NJT violated N.J.S.A. 34:13A-5.4a(1), (3) and (7),3/ when it failed to reinstate Carroll following her acquittal. ¶

On September 8, 1999, a Complaint and Notice of Hearing issued. On September 30, an amendment issued. ¶

On October 1, 1999, ATU filed its Answer denying that it had breached its duty of fair representation or that NJTBO had breached its collective negotiations agreement with ATU by not reinstating Carroll. By way of affirmative defense, ATU asserts that it could not take any action on Carroll's behalf because NJTBO would not waive the contractual time limit to allow a grievance to proceed to binding arbitration. ¶

Note2/ Footnote Continued From Previous Page ¶

negotiate in good faith with a public employer, if they are the majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit. (5) Violating any of the rules and regulations established by the commission." ¶

Note3/ These provisions prohibit public employers, their representatives or agents from: "(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act. (3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this act. (7) Violating any of the rules and regulations established by the commission." ¶

On January 14, 2000, NJTBO moved for summary judgment. On February 10, ATU responded that if NJTBO is no longer joined as a party, ATU could not see how the matter could properly proceed against ATU alone. ¶

The motion was referred to Hearing Examiner Regina Muccifori. On January 16, 2000, she granted the motion. H.E. No. 2000-12, 26 NJPER 300 (¶31121 2000). She found that any breach of contract claim against NJTBO had to be pursued in another forum. 4/ After the Hearing Examiner left the Commission's employ, the case was transferred to Hearing Examiner Kevin St. Onge. ¶

At a pre-hearing conference, Carroll requested that the Hearing Examiner decide whether ATU breached its duty of fair representation by failing to offer her assistance following her acquittal. A hearing was held on August 15, 2000. The parties entered into stipulations, examined witnesses, and introduced exhibits. ¶

After the charging party's case-in-chief, ATU moved to dismiss the Complaint. The motion was denied. ATU renewed its motion at the close of the hearing, but the Hearing Examiner directed the parties to address the issues in their post-hearing briefs. ¶

On December 15, 2000, the Hearing Examiner recommended dismissing the Complaint. H.E. No. 2001-14, 27 NJPER 48 (¶32024 ¶

Note4/ The Hearing Examiner's decision was interlocutory. In the absence of exceptions, we adopt her recommendation to dismiss the allegations against NJTBO. ¶

2000). He found that Carroll was not a public employee at the time she requested her former union to represent her interests. He further found that even if she were, the union minimally satisfied its obligation to her by advising her that she was no longer entitled to representation and by, nevertheless, making investigative efforts on her behalf. ¶

On December 27, 2000, Carroll filed exceptions. She argues that the Hearing Examiner erred in concluding that she was not a public employee entitled to the protections of the Act at the time of her acquittal. She further argues that the Hearing Examiner erred in concluding that ATU minimally satisfied its obligation to represent her. 5/ ATU has not filed an answering brief. ¶

We have reviewed the record. We adopt and incorporate the Hearing Examiner's undisputed findings of fact (H.E. at 5-21). ¶

N.J.S.A . 34:13A-5.3 empowers a majority representative to negotiate on behalf of all unit employees and to represent all unit employees in administering the contract. With that power comes the duty to represent all unit employees fairly in negotiations and contract administration. The private sector standards for measuring a union's compliance with the duty of ¶

Note5/ The charging party requests oral argument. We deny that request. Her arguments are fully explored in her exceptions and attached post-hearing brief. ¶

fair representation were articulated in Vaca v. Sipes, 386 U.S . 171 (1967). Under Vaca , a breach of the duty of fair representation occurs only when a union's conduct towards a member of the negotiations unit is arbitrary, discriminatory, or in bad faith. Id. at 191. That standard has been adopted in the public sector. Belen v. Woodbridge Tp. Bd. of Ed. and Woodbridge Fed. of Teachers, 142 N.J. Super. 486 (App. Div. 1976); see also Lullo v. IAFF , 55 N.J. 409 (1970); OPEIU Local 153, P.E.R.C. No. 84-60, 10 NJPER 12 (¶15007 1983). The duty of fair representation does not require a union to process non-meritorious grievances. Carteret Ed. Ass'n, P.E.R.C. No. 97-146, 23 NJPER 390 (¶28177 1997); Camden Cty. College , P.E.R.C. No. 88-28, 13 NJPER 755 (¶18285 1987). ¶

Under all the circumstances, we agree with the Hearing Examiner that the ATU did not breach its duty of fair representation to the charging party after her acquittal on criminal charges. Accordingly, we dismiss the Complaint. 6/ ¶

On March 8, 1997, Carroll was terminated for failure to deposit company funds and account for company funds. A grievance contesting the discharge was filed, but denied. On June 10, 1997, ATU's membership voted not to submit the grievance to arbitration. ¶

Note6/ In light of our determination on the merits, we neither adopt nor address the Hearing Examiner's conclusion that Carroll was not a public employee subject to the protections of the Act at the time of her acquittal. ¶

In addition to and separate from her termination, Carroll was indicted on criminal charges of official misconduct and theft by failure to make a required disposition. On October 5, 1998, she was acquitted of the criminal charges after a trial. She then contacted ATU and NJTBO seeking reinstatement under Section 1B of the contract. That section provides: ¶

When employees are called into the office on a charge or charges, they shall answer to such charge or charges only, provided that when complaints are made by Company officials that the employee is personally notified within 72 hours of the alleged offense, except in registration cases, the employee's two (2) days off will not be included in the computation of the 72 hours. The notice of hearing shall include the time of the incident or infraction. ¶

Entries will not be placed against the discipline record of any employee until such employee has been given a hearing and the charge or charges have been proven. Employees shall not be suspended for incivility, minor violations or accidents, until full investigation by the Company and the Union determine the facts of the case. Where existing laws automatically provide for suspension of driver's license, they will, of course, be observed. Due consideration shall be given to the record of the employee for the past five (5) years, when determining proper discipline. ¶

When employees are notified by written notice to come to the office to answer any charge or charges, it may be at the completion of their day's assignment, or on their swing, or before the start of their midday or night assignment, or at the completion of an a.m. tripper. When discipline is applied, any suspension or termination of service shall be effective immediately. When an employee is not permitted to start work or finish assignment, that day shall be applied to discipline. Suspensions shall cover consecutive days. ¶

A copy of the violation slip that spells out the discipline applied by the Supervisor or Company official at the first step of the grievance procedure shall be given to the Union representatives, who shall then make a signed acknowledgment that they have received a copy. ¶

When it is established that employees are innocent of charges against them, they shall be reimbursed for lost time as the result of a suspension or discharge. [Emphasis added] ¶

ATU initially responded that it believed that Carroll was no longer a union employee. Nevertheless, ATU contacted NJTBO and was advised that Carroll was terminated for failure to account for deposits, not theft, and that the 90-day period within which to seek arbitration had expired on Carroll's initial grievance contesting her discharge. Unfortunately, ATU never returned Carroll's telephone inquiry or otherwise reported on its contacts with NJTBO about her case. ¶

NJTBO responded to Carroll that her request for reinstatement was denied since there had been no finding of innocence as to the charges for which her employment was terminated. ¶

Carroll's attorney wrote to the ATU; those letters were referred to the ATU's attorney. The attorney responded that ATU did not agree that Section 1B entitled Carroll to reinstatement, but that it would resubmit the arbitration request to the membership if Carroll were to get NJTBO's consent to waive contractual time limits. ¶

We cannot find that the ATU's decision was arbitrary, discriminatory, or taken in bad faith. Its contractual interpretation in light of Carroll's situation was not unreasonable -- Carroll was discharged for different reasons than those she was acquitted of in the criminal proceeding and the contract article appears to be speaking of disciplinary charges rather than criminal charges. ¶

We note that ATU's initial response was that it no longer considered Carroll a union employee. That response is troubling because it was an ATU representative who suggested to Carroll that she discontinue paying dues after her termination. In addition, Local 880's president's failure to return Carroll's telephone calls is troublesome. We believe, however, that ATU satisfied its duty to represent her fairly by subsequently contacting NJTBO about Carroll's case, corresponding with her attorney, and taking a position on the contractual merits that was not unreasonable. Accordingly, we dismiss the Complaint. ¶

OrderORDER ¶

The Complaint is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

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

DATED: February 22, 2001 ¶

Trenton, New Jersey ¶

ISSUED: February 23, 2001 ¶