P.E.R.C. No. 2002-72, Glen Ridge Sch Pers Assn

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of GLEN RIDGE SCHOOL PERSONNEL ASSOCIATION AND NEW JERSEY EDUCATION ASSOCIATION, Respondents, -and- Docket No. CI-H-96-32 KENNETH T. TUCKER, JR., Charging Party. ¶

AppearancesAppearances: ¶

For the Respondents, Wills, O'Neill & Mellk, attorneys (Arnold M. Mellk, of counsel) ¶

For the Charging Party, Kenneth T. Tucker, Jr., pro se ¶

DECISION ¶

On November 29, 1995, Kenneth T. Tucker, Jr. filed an unfair practice charge against the Glen Ridge School Personnel Association and the New Jersey Education Association. The charging party 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), (4) and (5),1/ by misleading him into trusting the NJEA to provide him with representation in his ¶

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. (4) Refusing to reduce a negotiated agreement to writing and to sign such agreement. (5) Violating any of the rules and regulations established by the commission." ¶

arbitration and discrimination cases related to his termination. Tucker claims that although he was terminated in November 1993, his arbitration still has not taken place because of the undue delay caused by the respondents. ¶

Tucker also alleges that the respondents failed to provide him with an amended Association collective agreement which reflects that the parties are to use the arbitrator selection procedure administered by the Commission instead of the American Arbitration Association (AAA). He further asserts that the respondents violated the Act when they conditioned his continued representation upon his signing a certification waiving his right to make any claims against them. According to Tucker, the respondents never intended to represent him. ¶

On February 2, 1996, a Complaint and Notice of Hearing issued. On February 13, the respondents filed an Answer denying that they had violated the Act. They also assert that they are willing to pay their share of the costs for Tucker to proceed to arbitration, including the costs of an attorney of Tucker's choice, to be paid at the usual NJEA rate. In addition, they claim that it does not matter which agency provides an arbitrator; we lack jurisdiction to resolve any claim other than an alleged breach of the duty of fair representation; and Tucker's failure to name the employer as a party entitles him to no relief. ¶

Hearing Examiner Stuart Reichman conducted three days of hearing beginning June 6, 1996. After the third day, Tucker wrote to the Hearing Examiner, arguing that the Rules of Professional Conduct (RPC) prohibited any member of his former attorney's law firm from representing the Association. ¶

On April 28, 1997, the Hearing Examiner responded that the ethics issue was beyond the scope of the unfair practice charge and that Tucker was free to press that issue before an appropriate body. The Hearing Examiner also wrote that Tucker could apply for a stay if he felt that resolution of that matter was necessary before proceeding on the unfair practice charge. ¶

On May 5, 1997, the attorney then representing the Association filed a response that was apparently mailed before receipt of the Hearing Examiner's April 28 letter. The attorney argued that his law firm's representation of the Association was authorized by the RPC. ¶

The hearing continued for an additional eight days ending on April 9, 1998. Post-hearing briefs were filed by April 7, 1999. ¶

On November 19, 1999, the Hearing Examiner recommended dismissing the Complaint. H.E. No. 2000-4, 26 NJPER 123 (¶31053 1999). He found that the respondents acted in good faith in trying to represent Tucker and he concluded that the respondents had not breached their duty of fair representation by the manner in which they processed his grievance. In particular, the Hearing Examiner found that an NJEA UniServ representative's conduct in representing Tucker amounted to mere negligence which did not, standing alone, breach the duty of fair representation; although an NJEA attorney's conduct in representing Tucker may have constituted some degree of negligence, it did not constitute discrimination that is intentional, severe or unrelated to legitimate union objectives; although Tucker did not agree with the attorney's strategy or accept her preparation, her actions did not breach the duty of fair representation; the attorney's decision to ask Tucker to sign a certification waiving any claims against the respondents was made reasonably and in good faith; Tucker caused many of the delays in the case himself; the NJEA attorney believed, in good faith, that she had no alternative under the RPC but to refrain from continuing to represent Tucker; the respondents' failure to provide Tucker with a copy of an amendment to the collective negotiations agreement and their decision to switch from the American Arbitration Association to the Commission is not evidence that they failed to exercise due diligence and reasonable care in representing Tucker; there is no evidence that a statement signed by two local Association leaders helped lead to Tucker's termination; and Tucker's race-based claims have been raised before the Division on Civil Rights. ¶

On February 24, 2000, after an extension of time, Tucker filed exceptions and supporting exhibits. He requested oral argument. 2/ He also requested a directed verdict in his favor or a new hearing. ¶

Note2/ We deny that request. The matter has been fully briefed. ¶

Among other things, Tucker asserted that he had an unfair and unjust hearing because the Associations' attorney was violating the RPC. Tucker attached to his exceptions Disciplinary Complaints issued against the attorney who was appointed by the Association to represent Tucker in the arbitration and that attorney's law partner who represented the Association against Tucker in the hearing below. Those Complaints focus on the roles of the two attorneys in the unfair practice hearing. Because the charging party claimed that the attorneys' alleged violation of the RPC denied him a fair hearing, we held this case in abeyance pending disposition of the matters before the Office of Attorney Ethics. ¶

On December 18, 2001, we received a letter from the attorney representing the two attorneys in the disciplinary matter. The letter states that the two attorneys were admonished under R.P.C . 1.9(a)(1). That rule prohibits a lawyer who has represented a client in a matter from representing another client in the same or a substantially related matter in which the client's interests are materially adverse to the interests of the former client, absent consent and full disclosure. The letter included a brief excerpt from a Special Master's Report issued prior to the admonitions issued by the Disciplinary Review Board. The problem in this case was that one partner of the law firm represented Tucker in the grievance and OAL proceedings and then assisted that attorney's partner in the unfair practice hearing on Tucker's charge that the NJEA and Association did not fairly represent him in the grievance proceeding. ¶

On January 24, 2002, Tucker objected to the letter because it was not submitted by the attorney of record and because the attorney who did submit it should not be permitted to carve out a part of the Special Master's report to submit to Tucker's disadvantage. Tucker added that he objects to consideration of the report, but if we do consider it, we must also consider other aspects. ¶

At our request, complete copies of the admonitions and Special Master's report have been submitted. We note that the final Disciplinary Review Board actions do not reference the Special Master's report. We therefore decline to consider that report. ¶

The representation of the respondents at our hearing has been found to have violated the conflict of interest standard set by R.P.C . 1.9(a)(1). The Appellate Division has held that, in the absence of a waiver not present here, prejudice will be presumed to flow from such a conflict of interest. State v. Sanders, 260 N.J. Super . 491 (App. Div. 1992), states: ¶

The mischief that can arise in a conflict of interest prohibited by R.P.C . 1.9 may not be provable. To require a defendant to show with specificity exactly what confidences were used against him by his former attorney would require an extensive inquiry into a privileged area. The hearing itself would constitute an unhealthy erosion of the trust required by the attorney-client relationship. [ Id. at 500] ¶

See also Dewey v. R.J. Reynolds Tobacco Co., 109 N.J . 201, 221 (1988). "[A]nything short of disqualification would tend to undermine the 'high ethical standards which the Supreme Court of this State has sought so diligently to uphold.'" G.F. Industries v. American Brands, Inc., 245 N.J. Super . 8 (App. Div. 1990) (violation of R.P.C . 1.9, among other rules, required disqualification of law firm). ¶

We must now address the appropriate next step. The Hearing Examiner found that although the respondents' overall conduct did not breach the duty of fair representation, they were negligent in one or perhaps two aspects of their representation of Tucker. Proof of mere negligence, standing alone, does not suffice to prove a breach of the duty of fair representation. OPEIU (Wasilewski), P.E.R.C. No. 98-131, 24 NJPER 256 (¶29122 1998) aff'ng H.E. No. 98-4, 23 NJPER 573 (¶28287 1997). But the negligence in this case does not stand alone. In trying to assert his claim that the respondents violated their duty to represent him fairly, Tucker was faced with his Association-assigned attorney helping to defend the respondents in our unfair practice proceeding. Attorney-client confidences may have been revealed to the respondents' new attorney and the details of those confidences may be part of the 65 page decision issued by the Hearing Examiner and reported in the New Jersey Public Employee Reporter. ¶

We have struggled with the question of what action we should now take. This case presents a unique fact pattern. We have given serious consideration to remanding, but recognize that the respondents' representation at our hearing, coupled with the publication of possible attorney-client confidences in the Hearing Examiner's report, precludes an untainted new hearing. Contrast Reardon v. Marlayne, Inc., 83 N.J . 460 (1980) (new attorney shielded from strategy, plans and work product of disqualified law firm). We note that the charging party has sought throughout these proceedings to have the respondents provide an attorney to represent him at his arbitration proceeding; and the respondents have offered to provide that representation, although apparently not in the exact form the charging party demands. Under all the circumstances of this case, we conclude that the duty of fair representation requires that the respondents reimburse Tucker at reasonable and customary rates for the attorney of his choice to represent him in his grievance arbitration. 3/ ¶

OrderORDER ¶

The Glen Ridge School Personnel Association and the New Jersey Education Association are ordered to take this action: ¶

A. Comply with their duty of fair representation under N.J.S.A . 34:13A-5.3 by reimbursing Kenneth T. Tucker, Jr. at reasonable and customary rates for the attorney of his choice to represent him in his grievance arbitration proceeding. ¶

Note3/ In the absence of any supporting evidence, we dismiss the 5.4a(4) and (5) allegations. ¶

OrderB. Within twenty (20) days of receipt of this decision, notify the Chair of the Commission of the steps the Respondent has taken to comply with this order. ¶

The remaining allegations in the Complaint are 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 ¶