P.E.R.C. No. 2005-61, PBA Loc 187

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of PBA LOCAL 187, Respondent, -and- Docket No. CI-2002-64 JAMES CIPRIANO, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies a Motion for Summary Judgment filed by PBA Local 187 seeking dismissal of a Complaint based on an unfair practice charge filed by James Cipriano. The charge alleges that the PBA violated the New Jersey Employer-Employee Relations Act when it failed to process and pursue Cipriano’s grievance over alleged violations of departmental seniority. The Commission denies the motion because the parties have failed to support their factual assertions with certifications or affidavits. The Commission concludes that there may be no material facts in dispute in this case, but there is no factual record upon which to made that determination. The Commission denies the motion without prejudice to its refiling with proper supporting certifications and documents. ¶

This synopsis is not part of the Commission decision. It has been prepared for the convenience of the reader. It has been neither reviewed nor approved by the Commission. ¶

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of PBA LOCAL 187, Respondent, -and- Docket No. CI-2002-64 JAMES CIPRIANO, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Loccke & Correia, attorneys ¶

(Michael Bukosky, of counsel) ¶

For the Charging Party, Gregory S. Schaer, attorney ¶

DECISION ¶

On February 24, 2005, James Cipriano filed exceptions to a Hearing Examiner’s Decision on Motion for Summary Judgment. That decision recommended dismissing a Complaint based on an unfair practice charge filed against PBA Local 187. H.E. No. 2005-7, 31 NJPER 26 (¶12 2005). The Complaint alleges that the PBA breached its duty of fair representation toward Cipriano. The Hearing Examiner found that Cipriano has not asserted facts showing that the PBA acted in bad faith or in an arbitrary or discriminatory manner. ¶

Cipriano filed his unfair practice charge against the PBA on June 14, 2002. The charge alleges that the PBA violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., specifically 5.4b(1) and (5), 1/ when it failed to process and pursue his grievance over alleged violations of departmental seniority. A copy of a grievance attached to the charge claims that the parties’ past practice allowed employees to pick vacations, jobs/shifts and overtime assignments based on their seniority from date of hire with the Sheriff’s department and that selective enforcement of the contract is prejudicial and punitive. ¶

On September 10, 2004, a Complaint and Notice of Hearing issued. On September 28, the PBA filed its Answer denying the allegations in the Complaint and incorporating the affirmative defenses in its previously filed statement of position. That statement asserts that the PBA accepted, reviewed and considered the grievance advanced by Cipriano and that after review by the PBA executive board, and following consultations with counsel and the Sheriff’s department, it was determined that the grievance did not have merit and did not warrant submission to arbitration. The statement also asserts that the charge is untimely because Cipriano knew more than one year earlier how the PBA was interpreting the contractual seniority provision. ¶

On October 1, 2004, the PBA filed its motion for summary judgment with the Hearing Examiner. N.J.A.C . 19:14-4.8 requires that such motions be filed with the Chairman. On October 5, the Hearing Examiner transmitted the motion to the Chairman who referred it back to the Hearing Examiner for consideration. ¶

On November 4, 2004, the Hearing Examiner granted the charging party’s request for an extension of time until November 5 to file a response. On November 4, the charging party filed his response opposing summary judgment. On November 29, the PBA filed a reply attaching copies of two letters that had not previously been submitted. On December 14, the charging party filed a response. ¶

We begin by reviewing the procedures for filing motions before a hearing. The Director of Unfair Practices will issue a Complaint after making a determination that the allegations in a charge, if true, may constitute unfair practices on the part of the respondent, and that formal proceedings should be instituted in order to afford the parties an opportunity to litigate relevant legal and factual issues. N.J.A.C . 19:14-2.1. A decision by the Director to issue a Complaint may not be appealed pre-hearing except by special permission to appeal to the full Commission. N.J.A.C . 19:14-2.3(c). A motion for summary judgment filed by a respondent that does not rely on a factual record is in essence a motion appealing the Director’s determination that the allegations in the charge might constitute an unfair practice. Such a motion should not be considered by a Hearing Examiner. See East Brunswick Bd. of Ed., P.E.R.C. No. 97-75, 23 NJPER 41 (¶28028 1996); Englewood Bd. of Ed ., P.E.R.C. No. 93-119, 19 NJPER 355 (¶24160 1993); N.J.A.C. 19:14-2.3(c). ¶

Where a respondent believes that given the undisputed facts, there has been no unfair practice, the proper mechanism for bringing that to our attention is a motion for summary judgment. Such a motion will be granted if there are no material facts in dispute and the respondent is entitled to its requested relief as a matter of law. N.J.A.C . 19:14-4.8. However, the undisputed material facts must be in a supporting record. That record can be submitted by way of certifications or affidavits made on personal knowledge. N.J.A.C. 19:14-4.8(b); Sellers v. Schonfield, 270 N.J. Super . 424 (App. Div. 1993) (rejecting attorney’s certification and attached exhibits as a proper basis for granting summary judgment). ¶

Once a respondent places facts in the record in support of a motion for summary judgment, a charging party that disputes those facts must file its own certifications or affidavits made on personal knowledge. A charging party cannot rely on the allegations in its charge or any attachments to its charge to create a material factual dispute. See Jersey Central Power & Light Co. v. Lacey Tp., 772 F .2d 1103, 1109-1110 (3d Cir. 1985) (pleadings and briefs are not in evidence and cannot create issues of material fact in summary judgment proceeding). 2/ ¶

We now consider the pending motion. There are numerous irregularities in the unfolding of this motion that require us to deny it, in particular the parties’ failure to support their factual assertions with certifications or affidavits. The PBA did not file any documents or certifications with its motion. It attached two letters to a reply brief, but they are supported by a certification from respondent’s attorney, and not by anyone who certified that the content of the letters is true or that he or she had first-hand knowledge of who created or sent the letters. Both parties refer to provisions of the collective negotiations agreement, but neither has introduced a copy of the agreement. The charging party argues that the Hearing Examiner failed to address many material facts, but it has not submitted any affidavit, certification or document presenting those facts. ¶

It may be that there are no material facts in dispute in this case, but there is no factual record upon which we can make that determination. Accordingly, we must deny the respondent’s motion. ¶

The Court Rules on motions for summary judgment permit denials of such motions without prejudice for failure to file a statement of material facts citing the portion of the motion record establishing the fact or demonstrating that it is uncontroverted. R . 4:46-2(a). We will take a similar course and deny this motion without prejudice to its refiling with proper supporting certifications and documents. In addition, if there are no material facts in dispute, the parties may instead stipulate the facts for a decision without a hearing. See N.J.A.C. 19:14-6.7. ¶

OrderORDER ¶

The respondent’s motion for summary judgment is denied without prejudice. ¶

BY ORDER OF THE COMMISSION ¶

Lawrence Henderson ¶

Chairman ¶

Chairman Henderson, Commissioners Buchanan, DiNardo, Fuller, Mastriani and Watkins voted in favor of this decision. Commissioner Katz was not present. None opposed. ¶

DATED: March 31, 2005 ¶

Trenton, New Jersey ¶

ISSUED: March 31, 2005 ¶

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.” ¶

2/ A charging party may also move for summary judgment based on undisputed facts in a supporting record. ¶