P.E.R.C. No. 2002-71, Egg Harbor Tp EA

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of EGG HARBOR TOWNSHIP EDUCATION ASSOCIATION, Respondent, -and- Docket No. CI-H-2001-47 DONNA L. ZELIG, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Selikoff & Cohen, P.A., attorneys ¶

(Steven R. Cohen, of counsel) ¶

For the Charging Party, Donna L. Zelig, pro se ¶

DECISION ¶

On February 1 and March 14, 2001, Donna Lynn Zelig filed an unfair practice charge and amended charge against the Egg Harbor Township Education Association. The charge, as amended, alleges that the Association violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq ., specifically 5.4b(1), (2), (3) and (5),1/ by failing to timely ¶

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. (2) Interfering with, restraining or coercing a public employer in the selection of his representative for the purposes of ¶

Footnote Continued on Next Page ¶

advise her of negotiated changes to the collective negotiations agreement governing her terms and conditions of employment with the Egg Harbor Township Board of Education and by misleading her regarding the scope of a grievance regarding changes to the agreement. Specifically, the charging party contends a change in the agreement on salary guide placement for additional college/educational credits for the 1999-2000 school year entitled her to a $1,710 adjustment, but she was never informed of the change. Thus, she was precluded from timely requesting an adjustment and from grieving the Board's failure to adjust her salary for the 1999-2000 school year. She contends the Association discriminated against her by processing a grievance regarding these credits for two other members, including the Association's vice president/chief negotiator, but not her. ¶

On June 26, 2001, a Complaint and Notice of Hearing issued. On July 5, the Association filed an Answer denying the allegations and contending that: (1) the charging party was ¶

Note1/ Footnote Continued From Previous Page ¶

negotiations or the adjustment of grievances. (3) Refusing to 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." ¶

notified of changes to the contract; (2) the charging party failed to attend an Association ratification meeting regarding the contract; and (3) the grievance sought relief for "any other adversely affected employee," not just the two named grievants. The Association also requested the 5.4b(2), (3) and (5) claims be dismissed; it contended that the charging party lacked standing, as an individual, to maintain those claims and that she failed to assert any facts constituting a violation of Commission rules or regulations. ¶

The charging party withdrew her 5.4b(2), (3) and (5) claims at a pre-hearing conference. On August 16 and October 3, 2001, Hearing Examiner Kevin M. St.Onge conducted a hearing. The parties examined witnesses, entered into stipulations, and introduced exhibits. They waived oral argument, but filed post-hearing briefs. ¶

On February 11, 2002, the Hearing Examiner recommended dismissing the Complaint. H.E. No. 2002-10, 28 NJPER 143 (¶33048 2002). He found that the charging party did not demonstrate that the Association's circulation of information about the successor contract was arbitrary, discriminatory or in bad faith. The Association treated the charging party the same way, and she had the same opportunities, as other Association members. Thus, he found that the Association did not breach its duty of fair representation. ¶

On February 28, 2002, the charging party filed exceptions. On March 1, the Association filed an answering brief. 2/ ¶

We have reviewed the record. We adopt and incorporate the Hearing Examiner's findings of fact (H.E. at 3-14) with one minor modification. We disregard the opinion in footnote 6 that the Association should consider using a questionnaire. We now address the exceptions and responses. ¶

1. The charging party contends that the Hearing Examiner erred in finding that increments were only for graduate credits. She contends that increments are for any educational credits beyond a BA degree, plus certain credit for workshops. ¶

The Association responds that the Hearing Examiner did not concern himself with the requirements for salary credit; rather he addressed the Association's reasons for seeking a contractual change. ¶

Note2/ On March 6, 2002, the charging party filed a reply to the Association's answering brief. The Association filed an application to strike that submission. N.J.A.C . 19:14:7.3(g) prohibits the filing of additional briefs, beyond the brief in support of exceptions and answering brief, except by leave of the Commission. The charging party has not sought leave. In any event, we would deny such a request because the matter has been fully briefed. ¶

We reject this exception. The charging party has not specified what, if any, error the Hearing Examiner made. His findings appear to reflect the fact that the prior contract gave credit only for graduate credits earned after the master's degree and that the contractual limitation was removed. ¶

2. The charging party contends that no documentary evidence substantiates what was said at the union meetings. She also asks if the Association's procedures were appropriate. ¶

The Association responds that the charging party did not rebut the findings concerning the August meeting where 200-250 Association members came to learn about the new contract and the September ratification meeting. ¶

The lack of documentary evidence does not undercut the Hearing Examiner's findings about the steps the Association took to communicate contractual changes to its membership. ¶

3. The charging party asserts that no one stated that employees should submit letters to the Board in order to be included in a grievance seeking salary adjustment under the new contractual language. ¶

The Association responds that the Association did seek relief in the grievance arbitration that included "any other adversely affected employee." ¶

While the charging party's assertion that no one stated that employees should submit letters to the Board may be true, the Hearing Examiner did not err by not making such a finding. ¶

4. The charging party asserts that a "Fact Sheet" did not adequately explain what contract language was being deleted. ¶

The Association responds that the "Fact Sheet" referenced Article 10, paragraph C(3) and that all the charging party had to do was refer to the old contract. It further responds that if the charging party did not understand the sheet, she could have asked an Association representative for an explanation. ¶

We have no basis to find that the "Fact Sheet" was not clear and easily understandable. ¶

5. The charging party asserts that evidence concerning a rough draft should not be considered since it was a rough draft. ¶

The Association responds that the Association's president explained that the document ceased to be a draft when the Association and Board signed off on it. ¶

We have no reason to reject this evidence. ¶

6. The charging party asserts that the Association's president was careless by not ensuring that anyone entitled to an increment would be identified by a questionnaire such as the one the charging party circulated. ¶

The Association responds that the Hearing Examiner did not find that the Association was obliged to circulate a questionnaire. It further responds that the Hearing Examiner's comment that the questionnaire "illustrates a technique the Association should consider in servicing its membership" was not germane to a determination of the issues; nor were personal opinions expressed by the Hearing Examiner in footnotes 7 and 8. ¶

We agree with the Hearing Examiner that the questionnaires were irrelevant to whether the Association breached its duty of fair representation. The Hearing Examiner's comments in footnotes 6, 7 and 8 were unnecessary to his recommendations and are not adopted by this decision. ¶

7. The charging party asserts that the Hearing Examiner erred in crediting the testimony of the Association's president that he never told the charging party that the grievance on behalf of two other employees was private. ¶

The Association responds that the Hearing Examiner explained why he credited the president. ¶

We have no basis to disturb the Hearing Examiner's credibility determination. ¶

8. The charging party asserts that the Association's president could not be sure that he posted the Fact Sheet since his recordkeeping procedures were remiss. ¶

The Association responds that the Hearing Examiner found that the Fact Sheet was posted and that the charging party had several opportunities to learn about its contents. ¶

We accept the finding that the Fact Sheet was posted. ¶

9. The charging party asserts that the Association's president stated that 200-250 members attended the meeting; but that no sign-in sheet was presented. She also asserts that a letter to all would have ensured that everyone became aware of the increment. ¶

The Association responds that the Hearing Examiner credited the Association's witnesses regarding the number of members who attended the meeting. ¶

We have no basis to disturb the findings about the number of members who attended the meeting. Nor do we have any reason to speculate about how else the Association might have announced contractual changes. ¶

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 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). ¶

Under all the circumstances, we agree with the Hearing Examiner that the Association did not breach its duty of fair representation. Accordingly, we dismiss the Complaint. ¶

The Association negotiated the elimination of the contract provision that had limited payments for credits beyond the Masters degree to graduate credits earned after a master's degree. The change was announced to the Association's membership in a Fact Sheet and at two membership meetings. The Association then pursued a grievance on behalf of two employees and all other affected employees seeking retroactive backpay. The arbitrator refused to grant retroactive backpay to anyone other than the two named grievants. The Association unsuccessfully sought to have the arbitrator expand the remedy. Had the charging party sought an increase sooner, she might have become a named grievant and received retroactive compensation. ¶

The Association is not responsible for the charging party's failure to attend a membership meeting or inquire about a contractual change that was referenced, but not fully explained, in the Fact Sheet. The Hearing Examiner properly found that the Association did not breach its duty of fair representation in the way it conducted the ratification process or pursued the grievance to arbitration. The charging party was treated the same as everyone else. It is unfortunate that she missed an opportunity to secure a $1710 raise. But her misfortune was not caused by any breach of duty by the Association. ¶

OrderORDER ¶

The Complaint is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners Buchanan, Katz, Muscato, Ricci and Sandman voted in favor of this decision. Commissioner McGlynn was not present. None opposed. ¶

DATED: May 30, 2002 ¶

Trenton, New Jersey ¶

ISSUED: May 31, 2002 ¶