P.E.R.C. No. 2001-73, 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 C. SMITH, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondents, Zazzali, Fagella & Nowak, ¶

attorneys (Paul L. Kleinbaum, on the brief) ¶

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, alleging that they violated 5.4b(1) and (5) of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq.,1/ by retaliating against him for successfully pursuing an unfair practice charge (CI-97-52) against Local 152 in 1998. See PBA (Smith), P.E.R.C. No. 99-18, 24 NJPER 450 (¶29208 1998). ¶

The charge alleges that respondents retaliated against Smith by ¶

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." ¶

filing three internal union disciplinary charges against him on May 28, 1998 for allegedly making statements contrary to the welfare of the PBA; wrongfully finding him guilty on July 28, 1998; wrongfully denying him an appeal; and violating a previous Commission order. The charge also alleges that respondents retaliated against Smith when they charged him with, and found him guilty of, disorderly conduct as a result of a verbal altercation he had with State PBA officials at an October 13 State PBA meeting. Smith was thereafter expelled from the PBA. ¶

On October 14, 1999, a Complaint and Notice of Hearing issued. On October 25, the respondents filed an Answer denying that they had violated the Act; asserting that Smith had waived certain rights; and contending that the charge was untimely. ¶

On May 15, 2000, Hearing Examiner Arnold H. Zudick granted, in part, respondents' motion for summary judgment. H.E. No. 2000-11, 26 NJPER 255 (¶31100 2000). He dismissed the Complaint with respect to the allegations concerning the May 28, 1998 disciplinary charges and the July 28 decision, finding that they referred to events occurring more than six months before the unfair practice charge was filed. ¶

On July 21, 2000, after granting Smith special permission to appeal, we reinstated the allegations the Hearing Examiner had dismissed, reasoning that the six-month statute of limitations should be tolled for the period Smith was pursuing his internal union appeal. P.E.R.C. No. 2001-1, 26 NJPER 356 (¶31140 2000). ¶

On September 21 and December 13, 2000, the Hearing Examiner conducted a hearing. The parties examined witnesses, introduced exhibits, and filed post-hearing briefs. ¶

On March 15, 2001, the Hearing Examiner recommended that we dismiss the Complaint. H.E. No. 2001-17, 27 NJPER 158 (¶32055 2001). He found that Smith's prior litigation did not trigger the PBA's actions and that instead, Smith's own improper or unprotected conduct led to the disciplinary charges and expulsion. He concluded that Smith's expulsion was not arbitrary, capricious or invidious. ¶

On March 21, 2001, Smith filed exceptions objecting to certain factual findings and arguing that the Hearing Examiner disregarded evidence of respondents' retaliatory intent. Smith also contends that the Hearing Examiner erred in concluding that the First Amendment did not bar respondents from filing charges against him based on a letter he wrote to a local newspaper. Finally, Smith maintains that his medication impaired his ability to represent himself pro se. ¶

On March 23, 2001, the respondents replied to the exceptions. They assert that the exceptions do not comply with the specificity requirements of N.J.A.C . 19:14-7.3 and that there is no basis to disturb either the Hearing Examiner's credibility determinations or his legal analysis. They also stress that, based on his own observations of Smith and Smith's responses to his questions, the Hearing Examiner determined that Smith was capable of representing himself. ¶

We adopt and incorporate the Hearing Examiner's recommended findings of fact (H.E. at 4-25) as supplemented here. We start with an overview and chronology. ¶

The State PBA has over 33,000 members, including municipal, county and park police and state and county corrections officers. Corrections officers make up about one-third of the membership, and their withdrawal from the organization would result in significantly lower dues revenue, less money for scholarships, and less support for legislative activities. ¶

The PBA's constitution and bylaws prohibit members from belonging to any other police or law enforcement organization, if the organization's purpose is to represent law enforcement officers in matters affecting their employment or economic welfare. The constitution and bylaws direct that PBA members joining such organizations "shall" be expelled. They also provide that a member knowingly taking action detrimental to the PBA "shall be expelled, disciplined and/or punished." ¶

On May 24, 1998, the Home News Tribune published a letter from Smith suggesting that corrections officers should secede from the PBA -- as corrections officers in New York had done -- so that they could better address corrections issues. The letter noted that "some people think that corrections officers take a back seat to police officers." The letter continued that, without corrections officers' dues, the PBA would lose a lot of clout. ¶

On May 28, 1998, Michael Kaniuk, a member of PBA Local 152 and its delegate to the State PBA, filed internal union disciplinary charges against Smith with the Local 152 president. The charges alleged that, by writing the Home News letter, Smith violated his oath not to issue statements against the good and welfare of the PBA and not to injure another member. Kaniuk also maintained that by encouraging corrections officers to secede from the PBA, Smith created disharmony. Kaniuk requested a complete investigation and hearing to determine whether any punishment was warranted. ¶

Also on May 28, 1998, the Hearing Examiner in CI-97-52 issued her report, which recommended that the Commission find that PBA Local 152 had violated 5.b(1) of the Act when, in a letter notifying Smith that it intended to file internal disciplinary charges against him, it noted that he had filed an unfair practice charge against it. See H.E. No. 98-29, 24 NJPER 304 (¶29146 1998). However, since Hearing Examiner reports are sent by certified mail, the parties did not receive the report on May 28. 2/ ¶

Kaniuk's charges were referred to the Local 152 Judiciary Committee and a June hearing was scheduled. However, in late May ¶

Note2/ We ultimately adopted the Hearing Examiner's "narrow recommendation" that Local 152 violated 5.4b(1) by referring to Smith's unfair practice charge; however, we made no judgment about the legitimacy of the other asserted reasons for Smith's expulsion. P.E.R.C. No. 99-18, 24 NJPER 450 (¶29208 1998). ¶

and early June 1998, both Kaniuk and Local 152 Judiciary Committee Chairman Pedro Delgado independently recommended to incoming Local 152 President William Tolentino that the State PBA hear the charges against Smith. They both believed that, given the decision in CI-97-52, it would be difficult for Smith to receive a fair hearing at the local level. ¶

Tolentino agreed with Delgado's and Kaniuk's recommendations and, in a June 11, 1998 letter to State PBA President Michael Madonna, Kaniuk requested that the State PBA Judiciary Committee hear the charges. Madonna assigned the charges to that committee as requested to ensure that Smith would receive a fair hearing. On July 21, the State PBA Judiciary Committee held a hearing. Smith did not object to the transfer before or during the hearing. ¶

On August 12, 1998, State Judiciary Committee Chairman Michael Materazzo issued the Committee's unanimous decision finding Smith guilty of the charges; fining him $200; and suspending him for thirty days. Article 24, Section 4D of the PBA Constitution and Bylaws provides that an "expulsion, suspension, penalty or other discipline" is effective on the fifth day following a written decision, absent a stay. ¶

On August 18, 1998, Smith filed a notice of appeal and, on August 24, State PBA Recording Secretary John Kaiser notified Smith that the appeal would be heard on September 8 by the State PBA Board of Delegates. However, Kaiser forgot to include standard language advising that the fine had to be paid prior to the appeal. ¶

The minutes of the September 8, 1998 State PBA meeting show that the general meeting started at 10:00 a.m. and that several agenda items preceded consideration of Smith's appeal. Smith was not present when that agenda item was called. However, Madonna stated that the matter would be held in abeyance "to give [Smith] some fair time," given that Smith's notice stated that his hearing was scheduled for 11:30 a.m. After completing seven other agenda items, and just prior to turning to unfinished and new business, the delegates voted to accept the Judiciary Committee report. Smith arrived at the meeting shortly after that vote and, at Smith's request, Madonna allowed the appeal to be rescheduled. ¶

On September 25, 1998, Kaiser advised Smith that his appeal was rescheduled for October 13. This letter, unlike his August letter, stated that, under the PBA Constitution and Bylaws, the $200 fine had to be paid prior to the appeal before the Board of Delegates. ¶

The October 13 Board of Delegates meeting was scheduled to begin at 10:00 a.m., and Smith arrived before that. Materazzo saw Smith enter the building and confirmed with Kaniuk that Smith had not paid the fine. Materazzo, accompanied by delegate John Sheridan, then approached Smith to tell him that he should not be at the meeting because he had not paid his fine and his appeal could not be heard. Smith immediately jumped from his seat in an aggressive manner that at least one delegate thought would become a physical confrontation and screamed obscenities. ¶

In response to Smith's behavior, Materazzo asked PBA Executive Vice President Anthony Wieners to intervene. Madonna was called and he also explained to Smith that he would have to leave the meeting because he had not paid the fine and there could be no appeal. Smith cursed at Madonna and continued to scream that no one was going to make him leave the meeting. Smith left only after Madonna said he would call the police and have Smith arrested. As he left, Smith whispered obscenities to Materazzo and said, "I'll get you outside." Madonna stated that he would have considered a request to waive or delay the fine, but Smith did not make one. ¶

On October 16, 1998, Materazzo charged Smith with violating Article 26, Section 1(A) of the State PBA Bylaws -- "Disorderly Persons." Shortly after a December 10 hearing on the charges, the State Judiciary Committee unanimously found him guilty and expelled him from the PBA. On February 1, 1999, Smith appealed that decision. The appeal was initially scheduled to be heard at the April 13 State PBA meeting, but was rescheduled, at Smith's request, for the May 17 meeting. Smith did not appear at the May meeting and the appeal was denied. However, after May 17, Smith sent Kaiser a request to postpone consideration of the appeal pending a response from PERC staff about this charge. Kaiser denied the request, noting that it had not been received until May 25. ¶

Against this backdrop, we turn first to Smith's claim that he was unable to properly represent himself because he was taking medication at the time of the hearing. The record shows that the Hearing Examiner carefully considered this issue and concluded that Smith was fully capable of representing himself (2T3-2T6). Under these circumstances, there is no basis for Smith's contention that his ability to represent himself was "severely impaired." Smith never made that claim to the Hearing Examiner during the hearing or in his post-hearing brief; the Hearing Examiner did not observe any impairment; and Smith has offered no particularized description of his medication or its side effects. 3/ ¶

We next consider Smith's assertion that, contrary to the Hearing Examiner's conclusion, the May 1998 and October 1998 charges were filed against him in retaliation for his prevailing on his earlier unfair practice charge (CI-H-97-52). ¶

N.J.S.A . 34:13A-5.4b(1) prohibits an employee organization from "interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act." An employee organization violates this proscription when its action tends to interfere with protected rights and lacks a ¶

Note3/ In another exception related to the conduct of the hearing, Smith claims that the Hearing Examiner stated "that he could do nothing about" the fact that respondents' attorney was motioning to his witnesses in an effort to shape their testimony. In fact, the Hearing Examiner stated that he would watch for any such conduct (1T206). ¶

legitimate and substantial organizational justification. FOP, Lodge No. 12 (Colasanti), P.E.R.C. No. 90-65, 16 NJPER 126 (¶21049 1990). ¶

The Hearing Examiner found that there was no evidence that the 1998 internal union disciplinary charges were motivated by Smith's successful prosecution of CI-97-52; that the fine and eventual expulsion were the "inexorable result" of Smith's own actions; and that respondents' actions had a legitimate business purpose and were not arbitrary, capricious or invidious. We agree with this analysis and reject Smith's contention that the 1998 charges, viewed together with the charges that led to his filing CI-H-97-52, show a pattern of respondents' harassing and retaliating against him for exercising his rights under the Act. ¶

As the Hearing Examiner found, the May and October 1998 charges were responses to actions that Smith took in 1998. Therefore, the fact that they were filed close in time to the 1997 charges and to the decision in CI-97-52 does not in itself suggest that they were in retaliation for, or otherwise connected with, CI-97-52 -- especially since, as we discuss later, respondents' actions were reasonable. ¶

Smith also claims that the transfer of the May 1998 charges to the State PBA shows retaliatory intent because the transfer allegedly violated the PBA Constitution, which required that Delgado ask the State PBA to hear the charges. Smith maintains that the transfer was effected at Kaniuk's request and that his motivation was to ensure that Smith would be penalized for the 1997 decision. ¶

The record does not support these contentions. Smith does not explain why he believes he would have been more favorably treated if Local 152, rather that the State PBA, had heard the charges. The State PBA was not a respondent in CI-97-52 and Tolentino, Delgado and Kaniuk reasonably concluded that the State Judiciary Committee, as opposed to a Local 152 committee, would be better able to consider the 1998 charges without being influenced by Smith's pursuit of CI-H-97-52. ¶

Similarly, we do not find it suspect that the State PBA required Smith to pay his fine before it would hear an appeal of the July 1998 decision finding him guilty of the May 1998 charges. The PBA Constitution and Bylaws direct that a penalty takes effect five days after a written decision, absent a stay, but Sheridan neglected to inform Smith of that requirement when he notified him that the appeal would be heard by the September meeting. We do not deem it evidence of retaliation that Sheridan corrected his error and required Smith to adhere to standard procedures when the hearing was rescheduled for October. ¶

The rescheduling occurred at Smith's request and Sheridan stated that if Smith had appeared in time to have his appeal heard in September, he would have been allowed to proceed without paying the fine. ¶

Smith also claims that the October 16, 1998 charges were filed in retaliation for the earlier unfair practice charge and argues that the October 13 altercation was not as described by respondents' witnesses. The Hearing Examiner declined to credit Smith's assertion that Materazzo was acting in a threatening and aggressive manner when he approached Smith on October 13, and we have no basis to disturb that credibility determination. Further, we are unpersuaded by Smith's position that respondents "hand-picked" witnesses who would paint the picture they wanted of the October 13 encounter. Smith was free to call the witnesses whom he claims would have offered a different version. ¶

We also affirm the Hearing Examiner's ruling excluding a tape recording of a 1996 conversation between Smith and Materazzo. While Smith alleges that the tape reveals that Materazzo cursed at him and used racial slurs, we agree with the Hearing Examiner that a 1996 conversation was not probative of what occurred in the October 1998 encounter. ¶

Finally, we agree with the Hearing Examiner that the discipline imposed for the Home News letter and the October 13, 1998 altercation does not violate the Act or the First Amendment. ¶

We and the courts have consistently held that unions may expel or refuse membership to individuals who seek to undermine their majority representative status or otherwise create disharmony among members. See Calabrese v. PBA Local 76, 157 N.J. ¶

Super . 139 (Law Div. 1976); Colasanti; FMBA Local 35 (Carragino ), P.E.R.C. No. 83-144, 9 NJPER 336 (¶14149 1983); CWA Local 1037 (Schuster ), P.E.R.C. No. 86-78, 12 NJPER 91 (¶17032 1985); see also CWA and NJPEA, D.U.P. No. 98-28, 25 NJPER 213 (¶30097 1998). While Smith did not express support for a rival organization, his urging corrections officers to secede from the PBA was also directed to undermining the PBA's status as majority representative for those employees. The imposition of a fine was not arbitrary, capricious or invidious and does not indicate a retaliatory attitude: given the cases on point, the fine and suspension were not an unlawful punishment for Smith's conduct. ¶

Nor did the fine and suspension violate the First Amendment. The First Amendment generally applies only to governmental entities and, under Calabrese , a union member's right to free speech is limited by the union's right to protect itself against members who seek to undermine its status as majority representative. 157 N.J. Super. at 155-156. ¶

Similarly, Smith's expulsion after he was found guilty of the October 16, 1998 charges was not arbitrary, capricious, or invidious given that the PBA constitution and bylaws proscribe disorderly conduct; Smith's conduct was extreme; and membership organizations have an interest in excluding individuals who create a hostile or adversarial relationship with other members. See Stowell v. N.J. State Ass'n of Chiefs of Police, 325 N.J. Super. 512 (App. Div. 1999). ¶

For all these reasons, we hold that respondents did not violate 5.4b(1). In the absence of exceptions, we also conclude that they did not violate 5.4b(5). ¶

OrderORDER ¶

The Complaint is dismissed. ¶

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: June 28, 2001 ¶

Trenton, New Jersey ¶

ISSUED: June 29, 2001 ¶